THE HONBLE THE CHIEF JUSTICE SRI KALYAN JYOTI SENGUPTA AND THE HONBLE SRI JUSTICE SANJAY KUMAR
WRIT APPEAL No.41 OF 2015
23-01-2015
Ch.Vijaya Venkata Subba Raju and another Appellants
The Andhra Pradesh Cooperative Tribunal, Hyderabad and others Respondents
Counsel for the Appellants:Sri P.Balaji Varma
Counsel for Respondent No.1:Government Pleader for Cooperation
Counsel for Respondents 2 & 3 : Sri Ramachandra Rao Gurram
<Gist:
>Head Note:
?Reference Citation:
THE HONBLE THE CHIEF JUSTICE SRI KALYAN JYOTI SENGUPTA
AND
THE HONBLE SRI JUSTICE SANJAY KUMAR
WRIT APPEAL No.41 of 2015
JUDGMENT: (per the Honble The Chief Justice Sri Kalyan Jyoti Sengupta)
This appeal is sought to be preferred and admitted against the
judgment and order of the learned Single Judge dated 19.11.2014 by
which His Lordship has been pleased to dismiss the Writ Petition and
upheld the order of the learned Co-operative Tribunal allowing
substitution of the parties on account of the death of Smt. Ch.Buchi
Venkayamma.
Before we proceed further, we will record the admitted fact in
this case. The third parties have preferred an appeal before the learned
Co-operative Tribunal impleading Smt. Ch.Buchi Venkayamma as
party respondent, in connection with the dispute of a plot of land
acquired by her being a member of the co-operative society. During
pendency of the said appeal, Smt. Ch.Buchi Venkayamma (for short
the deceased) died. It is also admitted position that
Sri Ch.Venkatapathi Raju, who is one of the heirs and legal
representatives of the deceased, is the sixth respondent in the appeal
pending before the learned Co-operative Tribunal. The relationship
between the deceased and the sixth respondent in the appeal is mother
and son. In the appeal, long after 60 days from the date of death of the
deceased, an application was made for, in substance, bringing on
record respondent Nos.12 and 13 and the first appellant before us, as
respondents 10 to 12 therein. A plea was taken before the learned
Tribunal that the application for substitution of the parties ought to
have been dismissed on the two grounds, firstly, after the abatement,
such application has been filed, and secondly, the sixth respondent in
the appeal is not in the capacity of heir and legal representative of the
deceased fifth respondent, who died intestate leaving behind a Will
bequeathing the property in favour of the first appellant herein. But,
according to the appellants, the application was made for bringing
appropriate heirs and legal representatives. When no such application
was made within the sixty days, it cannot be said to be an appropriate
one in the eye of law. Hence, the question of setting aside the
abatement and condonation of delay and substitution of heirs and legal
representatives do not arise. The same argument was advanced before
the learned Trial Judge and His Lordship after noting the argument
and fact, found that there was no question of abatement in this matter
as such setting aside the order passed by the Co-operative Tribunal do
not and could not arise. His Lordship otherwise upheld the order of
substitution of the parties.
Learned counsel for the appellants argued that both the learned
Trial Judge and the Tribunal are wrong in not taking note of the fact
that appropriate and lawful application for bringing heirs and legal
representatives was not made despite communication of the fact that
Smt. Ch.Buchi Venkayamma died bequeathing the property in favour
of the first appellant herein. Except him, no other person or the legal
representative of the deceased is entitled to the property in that sense.
We have heard the learned counsel for the respondents.
It is an admitted position that unregistered Will is unchallenged
still now. Therefore, it is possible for any of the parties, who are
affected thereby to make a challenge. Both the eventualities and
possibilities are there. Under the circumstances, taking note of the
Andhra Pradesh Co-operative Tribunal (Procedure) Rules, 1994 (for
short the Rules), we feel that the order of the learned Trial Judge and
that of the Co-operative Tribunal should not be interfered with.
Rule 18 of the Rules provides for measure to be taken in case of
death and Rule 19 shows the effect on the death of applicant after
passing the abatement order and they read as follows:
18. Procedure in case of death of an appellant or an applicant:-
(1) If an applicant or the respondent therein dies
while the appeal or review application is pending
and it cannot be proceeded with unless his legal
representatives brought on record, the Tribunal shall
adjourn further proceedings to enable the legal
representative of the deceased to be made a party. If
such legal representative fails to do so within a
period of sixty days from the date of death of the
appellant or review applicant if the appellant fails to
file the petition making the legal representative as
per the appeal or review application, shall abate as
regards such deceased appellant or review applicant
as the case may be.
(2) Notwithstanding anything contained in sub-rule
(1) there shall be no abatement of an appeal or
review application by reason of the death of any
party between the conclusion of the hearing and
passing of the order but the order may, in such a
case, be passed notwithstanding the death and shall
have the same force and effect as if it has been
passed before the death took place.
19. Effect on the death of applicant after passing the abatement order:-
(1) Whenever an order or abatement has been
passed in a case where the applicant or review
applicant has died, his legal heir or representative in
a case where the respondent had died, the appellant,
may within sixty days from the date of such order
apply to the Tribunal for setting aside the abatement
and the Tribunal may on sufficient cause being
shown to its satisfaction set aside the abatement and
proceed with the appeal or review application.
(2) Where an application under sub-rule (1) has
been filed after more than sixty days from the date
of the order, the Tribunal may condone the delay on
a separate application filed for the purpose when the
delay is properly explained.
On a careful reading of Rule 18 of the Rules, it would appear that
event of abatement takes place only in relation to death of appellant or
applicant not in case of death of respondent. In any event proceeding
cannot be proceeded with unless heirs and legal representatives, in
case of death of both the applicant and respondent, are brought on
record. Unless there is an event of abatement, question of setting
aside the abatement does not and cannot arise. The learned Trial Judge
has found correctly in this case that the question of abatement does
not arise. This apart, there is another reason that there must be a
specific order of abatement in case of failure of making application
under sub-rule (1) of Rule 18 as it is clear from sub-rule (1) of Rule
19 of the Rules and that too, it is applicable in case of death of the
appellant or applicant. In other words, if the respondent dies, question
of abatement does not arise at all. Only requirement is to bring the
heirs and legal representatives on record before hearing of the matter
is taken up on account of devolution of interest, moreover, we notice
that one of the heirs and legal representatives, namely, the sixth
respondent in the appeal before the learned Co-operative Tribunal is
already on record in the capacity of intestacy heirs of the deceased.
Admitted position is that all the heirs and legal representatives of the
deceased are brought on record. For the purpose of hearing out the
matter, it is for the Tribunal to hear the real necessary party. It will be
open for the appellants before us particularly, the first appellant to
assert his right arising out of alleged Will. It will also be open for the
respondents to contest the same, whether in the appeal or in a separate
proceeding. If the Co-operative Tribunal is competent to decide the
issue of validity and legality of the will under the law, it can decide.
We leave all points open.
With the aforesaid discussion, the Writ Appeal is disposed of.
No order as to costs.
Consequently, miscellaneous petitions, if any pending, shall
stand closed.
___________________
K.J. SENGUPTA, CJ
23rd JANUARY, 2015.
__________________
SANJAY KUMAR, J
WRIT APPEAL No.41 OF 2015
23-01-2015
Ch.Vijaya Venkata Subba Raju and another Appellants
The Andhra Pradesh Cooperative Tribunal, Hyderabad and others Respondents
Counsel for the Appellants:Sri P.Balaji Varma
Counsel for Respondent No.1:Government Pleader for Cooperation
Counsel for Respondents 2 & 3 : Sri Ramachandra Rao Gurram
<Gist:
>Head Note:
?Reference Citation:
THE HONBLE THE CHIEF JUSTICE SRI KALYAN JYOTI SENGUPTA
AND
THE HONBLE SRI JUSTICE SANJAY KUMAR
WRIT APPEAL No.41 of 2015
JUDGMENT: (per the Honble The Chief Justice Sri Kalyan Jyoti Sengupta)
This appeal is sought to be preferred and admitted against the
judgment and order of the learned Single Judge dated 19.11.2014 by
which His Lordship has been pleased to dismiss the Writ Petition and
upheld the order of the learned Co-operative Tribunal allowing
substitution of the parties on account of the death of Smt. Ch.Buchi
Venkayamma.
Before we proceed further, we will record the admitted fact in
this case. The third parties have preferred an appeal before the learned
Co-operative Tribunal impleading Smt. Ch.Buchi Venkayamma as
party respondent, in connection with the dispute of a plot of land
acquired by her being a member of the co-operative society. During
pendency of the said appeal, Smt. Ch.Buchi Venkayamma (for short
the deceased) died. It is also admitted position that
Sri Ch.Venkatapathi Raju, who is one of the heirs and legal
representatives of the deceased, is the sixth respondent in the appeal
pending before the learned Co-operative Tribunal. The relationship
between the deceased and the sixth respondent in the appeal is mother
and son. In the appeal, long after 60 days from the date of death of the
deceased, an application was made for, in substance, bringing on
record respondent Nos.12 and 13 and the first appellant before us, as
respondents 10 to 12 therein. A plea was taken before the learned
Tribunal that the application for substitution of the parties ought to
have been dismissed on the two grounds, firstly, after the abatement,
such application has been filed, and secondly, the sixth respondent in
the appeal is not in the capacity of heir and legal representative of the
deceased fifth respondent, who died intestate leaving behind a Will
bequeathing the property in favour of the first appellant herein. But,
according to the appellants, the application was made for bringing
appropriate heirs and legal representatives. When no such application
was made within the sixty days, it cannot be said to be an appropriate
one in the eye of law. Hence, the question of setting aside the
abatement and condonation of delay and substitution of heirs and legal
representatives do not arise. The same argument was advanced before
the learned Trial Judge and His Lordship after noting the argument
and fact, found that there was no question of abatement in this matter
as such setting aside the order passed by the Co-operative Tribunal do
not and could not arise. His Lordship otherwise upheld the order of
substitution of the parties.
Learned counsel for the appellants argued that both the learned
Trial Judge and the Tribunal are wrong in not taking note of the fact
that appropriate and lawful application for bringing heirs and legal
representatives was not made despite communication of the fact that
Smt. Ch.Buchi Venkayamma died bequeathing the property in favour
of the first appellant herein. Except him, no other person or the legal
representative of the deceased is entitled to the property in that sense.
We have heard the learned counsel for the respondents.
It is an admitted position that unregistered Will is unchallenged
still now. Therefore, it is possible for any of the parties, who are
affected thereby to make a challenge. Both the eventualities and
possibilities are there. Under the circumstances, taking note of the
Andhra Pradesh Co-operative Tribunal (Procedure) Rules, 1994 (for
short the Rules), we feel that the order of the learned Trial Judge and
that of the Co-operative Tribunal should not be interfered with.
Rule 18 of the Rules provides for measure to be taken in case of
death and Rule 19 shows the effect on the death of applicant after
passing the abatement order and they read as follows:
18. Procedure in case of death of an appellant or an applicant:-
(1) If an applicant or the respondent therein dies
while the appeal or review application is pending
and it cannot be proceeded with unless his legal
representatives brought on record, the Tribunal shall
adjourn further proceedings to enable the legal
representative of the deceased to be made a party. If
such legal representative fails to do so within a
period of sixty days from the date of death of the
appellant or review applicant if the appellant fails to
file the petition making the legal representative as
per the appeal or review application, shall abate as
regards such deceased appellant or review applicant
as the case may be.
(2) Notwithstanding anything contained in sub-rule
(1) there shall be no abatement of an appeal or
review application by reason of the death of any
party between the conclusion of the hearing and
passing of the order but the order may, in such a
case, be passed notwithstanding the death and shall
have the same force and effect as if it has been
passed before the death took place.
19. Effect on the death of applicant after passing the abatement order:-
(1) Whenever an order or abatement has been
passed in a case where the applicant or review
applicant has died, his legal heir or representative in
a case where the respondent had died, the appellant,
may within sixty days from the date of such order
apply to the Tribunal for setting aside the abatement
and the Tribunal may on sufficient cause being
shown to its satisfaction set aside the abatement and
proceed with the appeal or review application.
(2) Where an application under sub-rule (1) has
been filed after more than sixty days from the date
of the order, the Tribunal may condone the delay on
a separate application filed for the purpose when the
delay is properly explained.
On a careful reading of Rule 18 of the Rules, it would appear that
event of abatement takes place only in relation to death of appellant or
applicant not in case of death of respondent. In any event proceeding
cannot be proceeded with unless heirs and legal representatives, in
case of death of both the applicant and respondent, are brought on
record. Unless there is an event of abatement, question of setting
aside the abatement does not and cannot arise. The learned Trial Judge
has found correctly in this case that the question of abatement does
not arise. This apart, there is another reason that there must be a
specific order of abatement in case of failure of making application
under sub-rule (1) of Rule 18 as it is clear from sub-rule (1) of Rule
19 of the Rules and that too, it is applicable in case of death of the
appellant or applicant. In other words, if the respondent dies, question
of abatement does not arise at all. Only requirement is to bring the
heirs and legal representatives on record before hearing of the matter
is taken up on account of devolution of interest, moreover, we notice
that one of the heirs and legal representatives, namely, the sixth
respondent in the appeal before the learned Co-operative Tribunal is
already on record in the capacity of intestacy heirs of the deceased.
Admitted position is that all the heirs and legal representatives of the
deceased are brought on record. For the purpose of hearing out the
matter, it is for the Tribunal to hear the real necessary party. It will be
open for the appellants before us particularly, the first appellant to
assert his right arising out of alleged Will. It will also be open for the
respondents to contest the same, whether in the appeal or in a separate
proceeding. If the Co-operative Tribunal is competent to decide the
issue of validity and legality of the will under the law, it can decide.
We leave all points open.
With the aforesaid discussion, the Writ Appeal is disposed of.
No order as to costs.
Consequently, miscellaneous petitions, if any pending, shall
stand closed.
___________________
K.J. SENGUPTA, CJ
23rd JANUARY, 2015.
__________________
SANJAY KUMAR, J
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