Smt. Sarvamma @ Sarvamangala B.P. and another vs Virupakshappa U.R. Since dead by his alleged LRs and Others

Budihal R.B., J. - This writ petition is filed seeking to set aside order dated 9.7.2015 passed on the application filed under Order 22, Rule 3 of CPC in FDP No. 32/2003 by the II Additional Civil Judge (Jr. Dn.), Tumkur.

Heard learned counsel appearing for the petitioners and learned counsel appearing for the respondents.

Learned counsel for the petitioners during the course of the arguments made submission that the respondents herein filed an application claiming that they are the legal representatives of the deceased petitioner in FDP No. 32/2003. The said application was objected by the petitioners herein by filing objection statement. In spite of that, the FDP Court relying upon the death extract of the deceased petitioner and without holding any enquiry, has allowed the application and hence, the learned counsel submitted that holding of the enquiry was necessary in the matter and without doing enquiry, the Court below cannot pass such orders. In this connection, the learned counsel for the petitioners has relied upon the decision in case of Karedla Parthasaradhi v. Gangula Ramanamma (D) through LRs. and others reported in AIR 2015 SC 891 and made submission that the order impugned is illegal and not sustainable in law.

Per contra, learned counsel appearing for the respondents submitted that when the original petitioner expired, the application under Order 22, Rule 3 of CPC was tiled to bring the applicants on record. But, however, the Court below while disposing of the said application has observed that the application ought to have been filed under Order 22, Rule 10 of CPC and accordingly, considered the said application on merits and ultimately, allowed the application. The respondents were ordered to be come on record as the legal representatives of the deceased original petitioner. The learned counsel submitted that it is claimed by the respondents in the said application that they are the wife and children of the deceased petitioner. It is also his submission that in the objection statement, the other side has not stated as to who are all the other legal representatives of the original petitioner having any interest to claim the title. Hence, the learned counsel submitted that the order passed by the trial Court considering the relationship so also factum of the death of the original petitioner is legal and valid and the contention of the other side is not sustainable.

I have perused the grounds urged in the writ petition and the impugned order passed by the trial Court on the application. I have also perused the application filed under Order 22, Rule 3 of CPC wherein the legal representatives are shown as defendant Nos. 1(a) to 1(d). The said application was also supported by the affidavit of one of the legal representatives wherein they have stated that they are the wife and children of the deceased original petitioner. Regarding production of the death extract of the deceased original petitioner, there is no dispute even by the other side. Therefore, the Court below after considering the factual aspect and merits of the application, has ultimately allowed the said application.

I have also perused the decision relied upon by the learned counsel for the petitioners herein. The Court below in the present case has conducted enquiry and on the basis of the objection statement filed, ultimately ascertained that the applicants are the legal representatives of the deceased original petitioner therein and allowed the application permitting them to come on record in place of the original petitioner. Therefore, no fault can be found with the order passed by the Court below. No merit in the writ petition, Accordingly, it is rejected.