H.SHARATH KUMAR vs A.JYOTHI PRAKASH - 2022 Supreme(Online)(Kar) 52412

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2022 Supreme(Online)(Kar) 52412

1

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 18^TH DAY OF JULY, 2022

BEFORE

THE HON9BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

WRIT PETITION NO. 20411 OF 2021 (GM-CPC)

BETWEEN:

1.
H.SHARATH KUMAR

S/O LATE HARISCHANDA

AGED ABOUT 41 YEARS

2.
H PUNEETH KUMAR

S/O LATE HARISCHANDA

AGED ABOUT 47 YEARS

3.
SMT RASHMI

S/O LATE HARISCHANDA

AGED ABOUT 45 YEARS

4.
H RAJESH

S/O LATE HARISCHANDA

AGED ABOUT 46 YEARS

5.
SMT SUREKHA

S/O LATE HARISCHANDA

AGED ABOUT 44 YEARS

PETITIONER NOS.1 TO 5 ARE
R/AT NO.45 PERIANNA AGRAHARA
NAIDU LAYOUT
RAJIV GANDHI ROAD
KEMPAPURA MAIN ROAD
BENGALURU 560 072

...PETITIONERS
(BY SRI.AMRUTH.A.N, ADVOCATE)

2

AND
1 .
A.JYOTHI PRAKASH

S/O LATE THEYAPPANNA

MAJOR IN AGE

R/AT NO.2919

14TH MAIN, RPC LAYOUT

BENGALURU 560 040

2 .
SRI KEMPA RAJU S G

S/O S G GANESH

AGED ABOUT 52 YEARS

R/AT NO.5TH STAGE

1ST MAIN, 6TH CROSS

BEML LAYOUT

RAJARAJESHWARI NAGARA

BENGALURU 560 098

3 .
SMT SANJANA RAJU

W/O SRI KEMPA RAJU

AGED ABOUT 48 YEAS

R/AT NO.5TH STAGE

1ST MAIN 6TH CROSS

BEML LAYOUT

RAJARAJESHWARI NAGARA

BANGALORE 560 098

4 .
B CHANDRASHEKAR

S/O LATE G H BANGERA

AGED ABOUT YEARS

R/AT NO.12/1 2ND MAIN

9TH CROSS CHAMARAJPET

BENGALURU 560 018

5 .
SMT MANGALA GOWRI

D/O LATE G H BENGERA

W/O RAGHURAM

AGED ABOUT YEARS

R/AT NO.8/1, 4TH MAIN

3

9TH CROSS, RAMACHANDRA NAGARA

CHAMARAJPET

BENGALURU 560 018

6 .
B. UTTAM KUMAR

S/O LATE G H BANGERA

AGED ABOUT YEARS

R/AT NO.404, BILVASHREE NILAYA

9TH CROSS, 1ST MAIN ROAD

PANCHASHEELANAGARA

MUDALAPALYA

BENGALURU 560 072

7 .
SMT SUJATHA B

D/O LATE G H BENGERA

W/O SRI KUMAR

AGED ABOUT YEARS

R/AT TANUJASRINIVAS

DODDAGUBBI VILLAGE

BIDARAHALLI HOBLI

BAGALURU ROAD

BENGALURU EAST TALUK

BENGALURU
...RESPONDENTS
(BY SRI.T.S.SATHISH, ADVOCATE FOR R-2 AND 3, NOTICE
TO R-1, R4 TO 7 IS DISPENSED)
THIS WRIT PETITION IS FILED UNDER ARTICLE 227
OF THE CONSTITUTION OF INDIA PRAYING TO QUASH
THE ORDER DATED 18.09.2021 PASSED BY THE LEARNED
TRIAL COURT IN O.S.NO.02/2014 ON THE FILE OF C/C
XXXVIII ADDL. CITY CIVIL AND SESSION JUDGE, AT
BENGALURU (CCH-38), PRODUCED AS ANNEXURE-E AND
ETC.,

THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING THIS DAY, THE COURT MADE THE FOLLOWING:

4

The captioned writ petition is filed by the plaintiff

feeling aggrieved by the order dated 18.09.2021

passed by the learned 38^th Additional City Civil and

Sessions

Judge,

Bengaluru

interlocutory

applications filed under Order 22 Rule 3 of CPC, under

Order 22 Rule 9(2) read with Section 5 of Limitation

Act and Section 5 of Limitation Act in O.S.No.2/2014,

as per Annexure-E.

Petitioners/plaintiffs have instituted a suit for

declaration and consequential relief of injunction in

O.S.No.02/2014. Pending suit, plaintiff No.1 died,

applications were filed to bring the proposed legal

representatives of petitioner/plaintiff No.1 on record.

The said applications are rejected by the learned Trial

judge on the premise that applications are not filed in

time and there is inordinate delay in brining the legal

representatives of deceased plaintiff No.1. This order

is under challenge.

Heard

learned

counsel

appearing

for

the

petitioner

and

learned

counsel

appearing

for

respondent Nos.2 and 3. Perused the order under

challenge.

In the suit, relief of declaration is sought against

respondent Nos.2 and 3. Petitioners/plaintiffs have

filed the present suit to declare that the sale deed

dated 15.05.2002 in favour of respondent Nos.2 and 3

null

and

void

and

not

binding

petitioners/plaintiffs. The learned Trial Judge has

rejected the legal representatives applications on the

premise that applications are filed after inordinate

delay. It is trite law that if a cause of action survives

on account of death of plaintiff and if a right to sue

survives in favour of proposed legal representatives,

Courts are bound to take a lenient view and allow the

proposed legal representatives to come on record.

May be there is some laxness on the part of other

plaintiffs in not filing applications in time. But that

however, does not mean that the rights of proposed

legal representatives to prosecute the present suit can

be denied by adopting hyper technical approach.

Therefore, I am of the view that the order under

challenge is not at all sustainable and the same is

liable to be quashed. Hence, I pass the following;

ORDER

The writ petition is allowed.

Impugned order dated 18.09.2021 is set

aside.

The proposed legal representatives of

deceased plaintiff No.1 are permitted to come

on record. Petitioners shall forthwith amend

the plaint before the Trial Court and proceed

with the suit.

Sd/-

JUDGE

HDK

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