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Judgment
Ravi Malimath, J.—The plaintiff filed a suit for declaration and consequential injunction. On his death, I.A. No. 5 was filed under Order XXII Rule 3 read with Order VI Rule 17 of CPC by the legal representatives of the deceased plaintiff, The trial Court by the impugned order rejected the application. Hence the present petition.
Sri. Krishna Moorthy, learned Counsel appearing for the petitioner contends that the impugned order is bad in law and liable to be set aside. He contends that on the death of the father they are entitled to come on record as the legal representatives and to implead five persona as defendants 3 to 7. It is contended that that sorts being the legal representatives are required to come on record and since all the legal representatives are not supporting the plaintiff, they have been arrayed as defendants.
The learned Counsel appearing for the respondent No. 1 defends the impugned order and submits that there is no error committed by the trial Court that calls for any interference. He submits that the petitioners are required to file separate applications and the present application is devoid of merits.
Sri. H. Hanumantharayappa, Government Pleader appearing for 2nd respondent submits that a single application seeking to come on record as legal heirs as well as amendment is not maintainable and hence the trial Court rightly rejected the application.
Heard Counsels.
Admittedly plaintiff died during the pendency of the suit and petitioners 1(a) to 1(c) are his sons. The proposed defendant No. 3 is yet another son and proposed defendant. No. 4 is the daughter in law of die deceased and defendants S to 7 are her children. Since the proposed defendants 3 to 7 are not supporting the plaintiff, they are arrayed as defendants and petitioners 1(a) to 1(c) are sought to be impleaded as legal representatives. The LRs haw right to come on record and it cannot be denied and they have the legal right to contest the suit. The impugned order therefore suffers with infirmity and deserves to be set aside.
The second relief sought for is for an amendment to delete the word plaintiff and in that place to inculcate the "plaintiff and defendants 3 to 7". The same is required as a consequence of allowing the application for bringing LRs on record. Hence, neither the cause of action nor the relief sought for would change the nature of the suit, if the same is allowed.
A single application is being Bed for bringing LRs as well as for amendment. The petitioner is required to file two separate applications one for bringing LRs of the deceased plaintiff and another for amendment. The contention raised by Sri. H. Hanumanthamyappa, Government Pleader that a single application is not maintainable and the procedure is not followed is upheld. However, in the larger interest and that due to technical error committed by the counsel, the parties should not be put to any inconvenience. Hence even though the procedure adopted is irregular, the same is ignored in the larger interest of justice and equity. In this Lapse, the petitioner is directed to pay a sum of Rs. 5,000/- as costs to the registry within a period of four weeks from the date of receipt of a copy of this order.
For the aforesaid reasons, the order dated 03.07.2008 passed on I.A. No. 5 in O.S. Na. 47/98 by the Principal Civil Judge (Jr. Dn.) Bantwal, D.K., is set aside, I.A. No. 5 filed by the petitioner is allowed subject to payment of cost of Rs. 5,000/- as costs to the registry within a period of four weeks from the date of receipt of a copy of this order.
Rule made absolute.