Andhra Pradesh High Court – Amravati
Nutulapati Ravikanth vs Nutulapati Narayana Rao Died on 8 April, 2025
HONOURABLE SRI JUSTICE V. GOPALA KRISHNA RAO
I.A.Nos.1, 2 & 3 OF 2025
IN
APPEAL SUIT NO.1 OF 2001
COMMON ORDER:
These applications are filed by the petitioners/appellants/plaintiffs under
Section 5 of the Limitation Act, under Order XXII Rule 9 and under Order XXII
Rule 4 of the Civil Procedure Code, seeking to condone the delay of 635 days
in filing the application to bring on record the legal representatives of the 12 th
respondent; to set aside the abatement caused due to the death of 12th
respondent and to bring on record the proposed respondent/71st respondent
as the legal representative of the deceased 12th respondent respectively in the
above appeal.
2. The case of the petitioners/appellants herein as follows:
A.S.No.1 of 2001 is filed against the judgment and decree, dated
30.10.2000 in O.S.No.251 of 1984 on the file of the Senior Civil Judge at
Vijayawada. The 12th respondent/ Nutulapati Vijaya Lakshmi in the above
appeal passed away in the month of January, 2023 leaving behind her son,
Ravi Sai Ram as her only legal representative. The above appeal cannot be
decided in the absence of the proposed respondent as he is a proper and
necessary party. The petitioners are not aware of the death of the 12th
respondent till today. It is only recently on 10.01.2025 when the petitioner
went to Hyderabad for the purpose of Visa to the United States of America,
the relatives informed that 12th respondent passed away, but did not give any
particulars. Therefore, the petitioners made enquiries and learnt that 12th
respondent passed away on 01.01.2023 leaving behind the proposed
respondent as the only legal representative. Needless to say that the
petitioners were not looked after by the joint family at any point of time. After
the death of the petitioner’s father N. Samba Siva Rao, the petitioners were
brought up with the support of matrimonial grandfather, B. Dasradaramaiah.
2
The relations between the family are strained and there are no visits or
communications between the family members. The counsel for the 12th
respondent did not furnish the details of the death or that of the legal heirs.
3. The 7th respondent filed counter-affidavit. The brief averments in the
counter-affidavit are as follows:
Aggrieved by the decree and judgment, dated 30.10.2000 delivered in
O.S.No.251 of 1985 by the learned I Additional Senior Civil Judge,
Vijayawada, the appellants filed the appeal suit. The suit in O.S.No.251 of
1984 is filed against nine defendants. Late Nutalapati Ranga Rao is shown as
the 3rd defendant. The 7th respondent and 7th defendant have filed a common
written statement contending inter alia after 23.05.1972 there was no joint
family in existence in fact all the members were living separately and having
separate mess. Pending the appeal suit, late Nutalapati Ranga Rao/3rd
respondent died, his LRs were brought on record as respondent Nos.10 to 13
to represent his estate. He further contended that after bringing the
respondent Nos.10 to 12 in the appeal, they have not taken any different
stand and they continued as the LRs of the deceased by engaging an
Advocate. The deceased 12th respondent has adopted the stand of the
deceased 3rd defendant. The estate of the deceased Ranga Rao is being
represented by the respondent Nos.10, 11 and 13. The 12th respondent is only
one of the legal representatives of the deceased 3rd respondent. As the estate
left by the deceased 3rd respondent is being sufficiently represented, death of
the 12th respondent would not abate the appeal suit as the remaining
respondents would sufficiently represent her estate. Having got knowledge
about these facts, the appellants filed the affidavit dated 20.02.2025 to
procrastinate the proceedings unendingly though the appeal suit is posted for
judgment and adjourned for filing the written arguments.
3
4. Heard Sri M.R.K. Chakravarthy, learned counsel for the petitioners
and heard Sri V.S.R. Anjaneyulu, learned Senior Counsel appearing for the
respondents.
5. The undisputed facts are the appeal suit in A.S.No.1 of 2001 is filed
against the judgment and decree, dated 30.10.2000 in O.S.No.251 of 1984 on
the file of the I Additional Senior Civil Judge at Vijayawada and the petitioners
filed the present appeal aggrieved against the said decree and judgment
passed by the trial Court in O.S.No.251 of 1984. The petitioners further
pleaded that the 12th respondent/Nutulapati Vijaya Lakshmi in the appeal
passed away in the month of January, 2023 leaving behind her son, Ravi Sai
Ram as her only legal representative and that the above appeal cannot be
decided in the absence of the proposed respondent as he is a proper and
necessary party. The petitioners further pleaded that they are not aware of the
death of the 12th respondent till today and they came to know about the death
of 12th respondent on 10.01.2025 and when the petitioner herein went to
Hyderabad for the purpose of Visa to the United States of America, his
relatives informed about the death of 12th respondent. The death of 12th
respondent during the pendency of the present appeal proceedings in the
month of January, 2023 is not at all disputed by the respondents on record. It
is also undisputed by the respondents that the 12th respondent died by leaving
his son proposed respondent/71st respondent as her sole legal representative.
When this Court inclined to order notice to the proposed respondent, Sri
V.S.R. Anjaneyulu, learned Senior Counsel on behalf of the respondents on
record raised an objection that the appeal would not abate after the death of
12th respondent as the estate being represented effectively. He would further
contend that the defendants 1 and 2 adopted the statement of 3rd defendant,
the 3rd defendant died and LRs of 3rd defendant are on record as respondent
Nos.1 to 13 that the present petition may be dismissed and there is no need to
issue notice to proposed respondent/71st respondent.
4
6. The learned counsel for the respondents placed a reliance of
Mahabir Prasad vs. Jage Ram and others1, wherein the Apex Court held as
follows:
“Even on the alternative ground that Mahabir Prasad being one of the
heirs of Saroj, Devi there can be no abatement merely because no
formal application for showing Mahabir Prasad as an heir and legal
representative of Saroj Devi was made. Where in a proceeding a party
dies and one of the legal representatives is already on the record in
another capacity, it is only necessary that he should be described by
an appropriate application made in that behalf that he ‘is also on the
record, as an heir and legal representative. Even if there are other
heirs and legal representatives and no application for impleading them
is made within the period of limitation prescribed by the Limitation
Act the proceeding Will not abate. On that ground also the order
passed by the High Court cannot be, sustained.”
In the case on hand, the LRs of the 12th respondent are not on record
and the present suit is a title suit which is filed for declaratory relief for seeking
declaration that the relinquishment deed, dated 23.05.1972 is a nominal and
sham. After conclusion of full trial, the said suit was dismissed by the trial
Court, the plaintiffs filed the first appeal before this Court.
7. Learned counsel for the petitioners/appellants placed another
reliance of Government of Andhra Pradesh through Principal Secretary
and others v. Pratap Karan and others2, wherein the Apex Court held as
follows:
“In the light of the above discussion, we hold:
(1) Wherever the plaintiffs or appellants or petitioners are found to
have distinct, separate and independent rights of their own and for the1
AIR 1971 Supreme Court 742
2
2016(4) ALD 2 (SC)
5purpose of convenience or otherwise, joined together in a single
litigation to vindicate their rights, the decree passed by the court
thereon is to be viewed in substance as the combination of several
decrees in favour of one or the other parties and not as a joint and
inseverable decree. The same would be the position in the case of
defendants or respondents having similar rights contesting the claims
against them.
(2) Whenever different and distinct claims of more than one are sought
to be vindicated in one single proceedings, as the one now before us,
under the Land Acquisition Act or in similar nature of proceedings
and/or claims in assertion of individual rights of parties are clubbed,
consolidated and dealt with together by the courts concerned and a
single judgment or decree has been passed, it should be treated as a
mere combination of several decrees in favour of or against one or
more of the parties and not as joint and inseparable decrees.
(3) The mere fact that the claims or rights asserted or sought to be
vindicated by more than one are similar or identical in nature or by
joining together of more than one of such claimants of a particular
nature, by itself would not be sufficient in law to treat them as joint
claims, so as to render the judgment or decree passed thereon a joint
and inseverable one.”
In the aforesaid case law, the Apex Court further held as follows:
“The plaintiffs succeeded the estate as sharers being the sons of
Khatadar. Indisputably, therefore, all the plaintiffs had equal shares in
the suit property left by their predecessors. Hence, in the event of
death of any of the plaintiffs, the estate is fully and substantially
represented by the other sharers as owners of the suit property. We
are, therefore, of the view that by reason of non-substitution of the
legal representative(s) of the deceased plaintiffs, who died during the
pendency of the appeal in the High Court, entire appeal shall not stand
abated. Remaining sharers, having definite shares in the estate of the
deceased, shall be entitled to proceed with the appeal without the
appeal having been abated.”
In the case on hand, the minors instituted a title suit before the trial
Court represented by maternal grandfather for seeking relief of declaration
6
that the relinquishment deed, dated 23.05.1972 is null and void and also sham
and nominal document. In the present case, the 3rd defendant died, his Legal
Representatives are already on record. The 12th respondent died by leaving
proposed respondent/71st respondent.
8. It was contended by the petitioners that the death of 12th respondent
was not intimated by the counsel for the respondents to the petitioners and the
plaintiffs herein are minors by the date of institution of the suit and they are not
having cordial terms with the respondents and that they are not having any
knowledge about the death of 12th respondent.
9. Section 2 (11) of Code of Civil Procedure defines a “legal
representative” as a person who, in law represents the estate of a deceased
person including everyone who intermeddles with the estate or on whom the
estate devolves upon a death of the party suing or being sued. In the case on
hand, all the plaintiffs are minors by the date of institution of the suit and the
minors represented by their maternal grandfather instituted a suit for seeking
relief of declaration that the relinquishment deed, dated 23.05.1972 is a
nominal and sham.
10. In a case of Om Prakash Gupta alias Lalloowa (now deceased)
and others vs. Satish Chandra (now deceased)3, the Apex Court held as
follows:
“Rule 10-A casts a duty upon a pleader appearing for a party to the
suit to intimate the court about the death of such party. It further
provides that once the court is informed by the pleader of a party that
he is no more, the court “shall” notify the opposing party of the death.
A straightforward interpretation of this rule would suggest that the
court’s obligation to issue notice to the other party is indeed
mandatory. Nonetheless, this obligation may not arise in all3
Civil Suit No.13407 of 2024
7circumstances. One notable exception could be when the information
regarding the party’s death is conveyed to the court in the presence of
the opposing party’s pleader or is documented by the court in the
order sheet. In such cases, if the pleader of the concerned party (and
consequently the party itself) has already been notified, issuing a
further notice from the court would not serve any substantial purpose
other than being an exercise by way of abundant caution. Therefore,
in the aforementioned scenario, the absence of a notice from the court
would not imply a failure to comply with Rule 10A, suggesting that it is
not “always mandatory”.
In the case on hand, it is undisputed by both the parties that 12th
respondent died by leaving the proposed respondent/71st respondent and the
same is not in disputed. The contention of the petitioners is that the counsel
for the respondents not intimated the fact of the death of 12th respondent
which was happened in the year 2023 and the 12th respondent died on
01.01.2023 leaving behind the proposed respondent/71st respondent and the
petitioners were brought up by the maternal grandfather and the relationship
between both the families are strained and there are no visiting terms in
between both the parties. By the date of filing of suit, all the plaintiffs are
minors represented by their maternal grandfather as guardian.
11. A Full Bench judgment of the Apex Court in a case of Daya Ram
and others vs. Shyam Sundari and others4, held as follows:
“In a case where the person brought on record is a legal
representative we consider that it would be consonant with justice and
principle that in the absence of fraud or collusion the bringing. on
record of such a legal representative is sufficient to prevent the suit or
the appeal from abating. We have not been referred to any principle of
construction of Order 22, Rule 4 or of the law which would militate4
1964 SCC OnLine SC 153
8against this view. This view of the law was approved and followed by
Sulaiman, Acting C.J. in Muhammiad Zafaryab Khan v. Abdul Razzaq
Khan(4). A similar view of the law has been taken in Bombay-See
Jehrabi Sadullakhan Mokasi v. Bismillabi Sadruddin Kaji (5) – as also
in Patna-See Lilo Sonar v. Jhagru Sahu (6) as and Shib Dutta Singh v.
Sheikh Karim Bakhas (7) as well as in Nagpur – Abdul Baki v. R. D.
Bansilal Abirchand Firm, Nagpur (8). The Lahore High Court has also
accepted the same view of the law – See Umrao Begum v. Rehmat
Ilahi (9). We are, therefore, clearly of the opinion that the appeal has
not abated.
The next question is about the effect of the appellant having omitted to
include two of the heirs of Shyam Sundari, a son and a daughter who
admittedly had an interest in the property, and the effect of this matter
being brought to the notice of the Court before the hearing of the
appeal. The decisions to which we have referred as well as certain
others have laid down, and we consider this also, correct, that though
the appeal has not abated, when once it is brought to the notice of the
Court hearing the appeal that some of the legal representatives of the
deceased respondent have not been brought on record, and the
appellant is thus made aware of this default on his part, it would be his
duty to bring these others on record, so that the appeal could be
properly constituted.”
In a case of Delhi Development Authority vs. Diwan Chand Anand
and others5, the Apex Court held as follows:
“After referring to the decision of this Court in the case of Nathu
Ram (supra), in the case of Vennigalla Koteswaramma vs. Malampati
Suryamba and Others, MANU/SC/1214/2022 : (2003) 3 SCC 272, it is
observed by this Court that the nature and extent of the abatement in a
given case and the decision to be taken thereon will depend upon the5
(2022) 10 SCC 428
9facts of each case and, therefore, no exhaustive statement can be made
either way and that the decision will ultimately depend upon the fact
whether the decree obtained was a joint decree or a separate one. It is
further observed that this question cannot and should not also be tested
merely on the format of the decree under challenge or it being one or the
manner in which it was dealt with before or by the Court which passed it.
Thus, as observed and held by the Court:
(i) The death of a plaintiff or defendant shall not cause the suit to abate if
the right to sue survives;
(ii) If there are more plaintiffs or defendants than one, and any of them
dies, and where the right to sue survives to the surviving plaintiff or
plaintiffs alone, or against the surviving defendant or defendants alone,
the Court shall cause an entry to that effect to be made on the record,
and the suit shall proceed at the instance of the surviving plaintiff or
plaintiffs, or against the surviving defendant or defendants (Order 22
Rule 2);
(iii) where one of two or more defendants dies and the right to sue does
not survive against the surviving defendant or defendants alone, or a
sole defendant or sole surviving defendant dies and the right to sue
survives, the Court, on an application made in that behalf, shall cause
the legal representative of the deceased defendant to be made a party
and shall proceed with the suit. Where within the time limited by law no
application is made under sub-rule 1 of Order 22 Rule 4, the suit shall
abate as against the deceased defendant;
(iv) the provision of Order 22 shall also apply to the appeal proceedings
also.
As observed and held by this Court in the aforesaid decisions while
considering whether the suit/appeal has abated due to non-bringing the
legal representatives of plaintiffs/defendants or not, the Court has to
examine if the right to sue survives against the surviving respondents.
Thereafter the Appellate Court has to consider the question whether non-
bringing the legal representatives of some of the defendants, the appeal
could have proceeded against the surviving respondents. Therefore, the
10
Appellate Court has to consider the effect of abatement of the appeal
against each of the respondents in case of multiple respondents.”
12. In view of the principles laid down in the aforesaid case laws and for
the aforesaid reasons, I am of the considered view that the objections raised
by the respondents on record are overruled.
__________________________
V. GOPALA KRISHNA RAO, J.
Dt. 08.04.2025.
PGR
11
HONOURABLE SRI JUSTICE V. GOPALA KRISHNA RAO
I.A.Nos.1, 2 & 3 of 2025
In
A.S.No.1 of 2001
Dt.08.04.2025
PGR
[ad_1]
Source link