Once the representative of deceased is already on record, on the date of party, suit does not abate against the said person. In respect of item No.2 of B schedule property, it is only a mortgage in favour of defendants 7 to 9 by 5th defendant. Hence, legal representatives of 5th defendant should be brought on record. Since one of the legal representatives of the deceased 5th defendant is already on record, the suit does not abate on the death of 5th defendant.= (a) When the inferior court assumes jurisdiction erroneously in excess of power. (b) When refused to exercise jurisdiction. (c) When found an error of law apparent on the face of record. (d) Violated principles of natural justice. (e) Arbitrary or capricious exercise of authority or discretion. (f) Arriving at a finding which is perverse or based on no material. (g) A patent or flagrant error in procedure. (h)Order resulting in manifest injustice and (i) Error both on facts and law or even otherwise.

Once the representative of

deceased is already on record, on the date of party, suit does

not abate against the said person. In respect of item No.2 of B

schedule property, it is only a mortgage in favour of defendants

7 to 9 by 5th defendant. Hence, legal representatives of 5th

defendant should be brought on record. Since one of the legal

representatives of the deceased 5th defendant is already on

record, the suit does not abate on the death of 5th defendant.

IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI

CIVIL REVISION PETITION Nos.2483, 2560 and 2561 of

2022

Between:

Uppalapu Venkata Krishna Rao, S/o

Venkateswara Rao, Hindu, aged 47, R/o

D.No.31-15-35A, Katurivari Street, Machavaram,

Vijayawada.

… Petitioner/Plaintiff in three CRPs.

Versus

Gajavalli Venkata Ramesh Bhavani Prasad (Died)

and nine others.

… Respondents in three CRPs.

DATE OF ORDER PRONOUNCED : 23.01.2023

SUBMITTED FOR APPROVAL:

HONOURABLE SRI JUSTICE SUBBA REDDY SATTI

1. Whether Reporters of Local Newspapers

may be allowed to see the order? : Yes/No

2. Whether the copy of order may be

marked to Law Reporters/Journals? : Yes/No

3. Whether His Lordship wish to

see the fair copy of the order? : Yes/No

__________________________

SUBBA REDDY SATTI, J

2023:APHC:1481

Page 2 of 18

SRSJ,

CRP Nos.2483, 2560, 2561 of 2022

* HONOURABLE SRI JUSTICE SUBBA REDDY SATTI

+ CIVIL REVISION PETITION Nos.2483, 2560 and 2561 of

2022

% 23.01.2023

CIVIL REVISION PETITION Nos.2483, 2560 and 2561 of 2022:

Uppalapu Venkata Krishna Rao, S/o

Venkateswara Rao, Hindu, aged 47, R/o

D.No.31-15-35A, Katurivari Street, Machavaram,

Vijayawada.

… Petitioner/Plaintiff in three CRPs.

Versus

Gajavalli Venkata Ramesh Bhavani Prasad (Died)

and nine others.

… Respondents in three CRPs.

! Counsel for Petitioner : Smt.V.Disha Chowdary

^ Counsel for Respondents : Sri K.G.Krishna Murthy,

learned Senior Counsel

representing Sri Chalasani

Ajay Kumar

< Gist:

> Head Note:

? Cases referred:

1) AIR 2002 SC 1201

2) AIR 1971 SC 742

3) (2010) 9 SCC 385

This Court made the following:

2023:APHC:1481

Page 3 of 18

SRSJ,

CRP Nos.2483, 2560, 2561 of 2022

HONOURABLE SRI JUSTICE SUBBA REDDY SATTI

CIVIL REVISION PETITION Nos.2483, 2560 and 2561 of

2022

Between:

Uppalapu Venkata Krishna Rao, S/o

Venkateswara Rao, Hindu, aged 47, R/o

D.No.31-15-35A, Katurivari Street, Machavaram,

Vijayawada.

… Petitioner/Plaintiff in three CRPs.

Versus

Gajavalli Venkata Ramesh Bhavani Prasad (Died)

and nine others.

… Respondents in three CRPs.

Counsel for the petitioner : Smt.V.Disha Chowdary

Counsel for respondent No.6 : Sri K.G.Krishna Murthy, learned

Senior Counsel representing Sri

Chalasani Ajay Kumar

COMMON ORDER

Plaintiff, in the suit, filed above revisions aggrieved by the

order dated 19.09.2022 in I.A.No.149 of 2022 in O.S.No.382 of

2013 on the file of the XIV Additional District Judge-cumJudge, Additional Family Court, Vijayawada and I.A.Nos.150 of

2022 and 151 of 2022.

2023:APHC:1481

Page 4 of 18

SRSJ,

CRP Nos.2483, 2560, 2561 of 2022

2. Plaintiff filed suit O.S.No.382 of 2013 for declaration that

the plaintiff is the absolute owner of plaint B schedule property

and the sale deeds dated 11.10.2011 and 13.06.2012 and all

other subsequent documents entered and executed in between

the defendants are not valid under law and not binding on the

plaintiff and for consequential relief of permanent injunction.

3. In the plaint, it was contended interalia that defendants 1

to 4 are owners of schedule property admeasuring 636 square

yards of site bearing D.No.27-19-8 situated in Durgaiah Street,

Governorpet, Vijayawada described as plaint A schedule

property; that defendants 1 to 4 entered into a development

agreement with the plaintiff and another by name Mallikarjuna

Reddy to develop the property and to construct cellar, ground,

first, second and third floors in the above said site; that plaintiff

obtained necessary permission from the Municipal Corporation,

Vijayawada in the name of defendants 1 to 4 by paying

necessary charges; that defendants 1 to 4 came to an

understanding to construct fourth floor in the above said site

with a specific understanding that all expenses, fees for

construction are to be shared by both of them equally; that

defendants 1 to 4 are having 50% share and plaintiff is having

2023:APHC:1481

Page 5 of 18

SRSJ,

CRP Nos.2483, 2560, 2561 of 2022

50% share each in the constructed area; that the plaintiff has to

invest all the amounts for the purpose of obtaining permission

and to complete the entire construction; that defendants 1 to 4

delivered possession of plaint A schedule property and the

plaintiff completed construction as per the understanding that

plaintiff; that defendants 1 to 4 and partner of plaintiff entered

into Memorandum of Understanding (MOU) dated 28.01.2010;

that as per that MOU plaintiff is entitled for first and second

floors towards his share described as plaint B schedule; that

defendants 1 to 4 are entitled to remaining share i.e. ground,

third and fourth floors; that cellar and terrace of building have

to be shared as per floor ratio; that Mallikarjuna Reddy is

having no manner of right since his claim was settled by

plaintiff and defendant 1 to 4; that MOU was duly

acknowledged and signed by said Mallikarjuna Reddy; that

defendants 1 to 4 agreed to pay Rs.40 lakhs to plaintiff, which

was paid to defendants 1 to 4 as security deposit as per the

terms of agreement dated 13.10.2006; that plaintiff has to

complete unfinished part on or before 31.12.2020 and to

provide other amenities; that plaintiff and defendants 1 to 4 are

entitled to sell their respective shares in the building; that if the

2023:APHC:1481

Page 6 of 18

SRSJ,

CRP Nos.2483, 2560, 2561 of 2022

plaintiff sells his share of property, defendants 1 to 4 have to

execute regular sale deeds in the name of purchasers or their

nominees; that plaintiff several times requested defendants 1 to

4 to execute regular necessary deeds in his favour or his

nominees regarding first and second floors as per MOU dated

28.01.2010, however, defendants 1 to 4 postponed to execute

the same; that plaintiff subsequently came to know that

defendants 1 to 4 without having any manner of right over first

and second floors i.e. plaint B schedule property created

collusive, sham and nominal documents in the name of 5th

defendant by way of sale deeds dated 13.06.2012 and

11.10.2011; that 5th defendant in turn executed agreement of

sale-cum-General Power of Attorney dated 29.06.2012 in favour

of 6th defendant in respect of item No.1 of plaint B schedule

property; that 6th defendant executed sale deed dated

19.10.2013 onto himself basing on sale agreement-cum-GPA

dated 29.06.2012; that 5th defendant also created mortgage in

respect of second floor, item No.2 of plaint B schedule property,

in the name of defendants 7 to 9 on 02.03.2012; that plaintiff

never delivered possession of property to defendants 1 to 4; that

above documents are sham, collusive and nominal documents;

2023:APHC:1481

Page 7 of 18

SRSJ,

CRP Nos.2483, 2560, 2561 of 2022

that 6th defendant in fact filed complaints against the plaintiff,

resulted in initiating proceedings under Section 145 (1) of

Cr.P.C and thus, filed the suit for the reliefs stated supra.

4. 6th Defendant filed written statement and is contesting the

suit.

5. 5th defendant died on 29.05.2017.

6. Pending the suit, I.A.No.149 of 2022 is filed under Section

5 of the Limitation Act to condone the delay of 685 days in filing

the petition to set aside abatement; I.A.No.150 of 2022 is filed

under Order XXII Rule 9 and Section 151 of CPC to set aside

abatement caused due to death of the 5th defendant and

I.A.No.151 of 2022 is filed under Order XXII Rule 4 and Section

151 of CPC to implead the legal representatives of deceased 5th

defendant i.e. his mother Kancherla Annapurna, W/o

K.Janakiramaiah as 10th defendant in the suit.

7. In the affidavit filed in support of the petitions to condone

delay, set aside abatement and to implead the legal

representatives, it was contended that a memo was filed by

learned counsel for 6th defendant on 21.01.2020 about death of

2023:APHC:1481

Page 8 of 18

SRSJ,

CRP Nos.2483, 2560, 2561 of 2022

5th defendant, then petitioner came to know about death; that

on enquiry, he came to know that 5th defendant died leaving

behind his mother and recently the petitioner came to know

about the particulars of legal heirs of deceased and hence filed

the petition to condone the delay of 685 days in filing the

petition to set aside the abatement, to set aside abatement and

to add legal representatives of deceased 5th defendant.

8. 6th Respondent filed counter opposing the application. In

the counter, it was contended interalia that 6th respondent filed

memo dated 05.09.2018 and brought to the notice of Court

about death of 5th defendant and the same was recorded by the

Court; that contrary to the said fact, petitioner deposed in his

cross examination on 20.12.2019 that he does not know about

death of 5th defendant; that plaintiff did not take steps to bring

legal representatives of deceased 5th defendant on record till

filing of memo dated 21.01.2020; that no reasons were assigned

for not taking steps to bring the legal representatives on record;

that the delay is more than 685 days and thus, prayed to

dismiss the applications.

2023:APHC:1481

Page 9 of 18

SRSJ,

CRP Nos.2483, 2560, 2561 of 2022

9. Heard Sri A.S.C.Bose, learned counsel representing

Smt.V.Disha Chowdary, learned counsel for petitioner and Sri

K.G Krishna Murthy, learned senior counsel representing Sri

Chalasani Ajay Kumar, learned counsel for 6th respondent.

10. Learned counsel for petitioner would submit that

petitioner is not aware of death of 5th defendant till memo dated

21.01.2020 was filed by learned counsel for 6th defendant. He

would also submit that in the memo dated 21.01.2020 no

particulars of death of 5th defendant were mentioned, except

stating that 5th defendant died and hence, intimated. He would

also submit that despite best efforts, plaintiff could not get

particulars of legal representatives of 5th defendant and hence,

immediately he could not file the application. He would submit

that in the cross examination of P.W.1 on 20.09.2019 he

deposed that he does not know about death of 5th defendant.

He would also submit that 6th defendant being purchaser of

property from 5th defendant is already on record representing

the estate of 5th defendant, however to avoid other

technicalities, filed the application to bring the mother of 5th

defendant on record as 10th defendant and the trial Court

2023:APHC:1481

Page 10 of 18

SRSJ,

CRP Nos.2483, 2560, 2561 of 2022

without considering these aspects dismissed the application

and thus, prayed to set aside the order.

11. Learned senior counsel for 6th respondent would submit

that when memo dated 05.09.2018 was filed intimating the

death. Counsel for plaintiff, inturn, filed memo stating that

defendants 2 to 4 who are legal representatives of 1st defendant

are already on record and there is no need to implead the legal

representatives of 1st defendant and in respect of 5th defendant,

it was mentioned in the memo that to his knowledge there are

no legal heirs. He would submit that the affidavit filed by

petitioner to the effect that he is not aware of death of 5th

defendant till the memo dated 21.01.2020 filed by 6th defendant

in the Court is not true and correct. He would also submit that

no proper explanation was mentioned in the affidavit regarding

delay. He would also submit that trial Court in fact after

considering all these aspects dismissed the application and

thus, prayed the Court to dismiss the revisions.

12. Now, the point for consideration is:

Whether the Court below failed to exercise

jurisdiction vested with it warranting interference

2023:APHC:1481

Page 11 of 18

SRSJ,

CRP Nos.2483, 2560, 2561 of 2022

of this Court under Article 227 of the Constitution

of India?

13. As discussed supra, suit is filed for declaration and

permanent injunction. Plaintiff pleaded MOU between plaintiff

on one side and defendants 1 to 4 on the other. According to

plaintiff, as per MOU, he is entitled to first and second floors.

Plaintiff further pleaded that defendants 1 to 4 alienated plaint

B schedule property to 5th defendant under registered sale

deeds dated 13.06.2012 and 11.10.2011 and 5th defendant in

turn executed an agreement of sale-cum-GPA dated 29.06.2012

in respect of item No.1 of plaint B schedule in favour of 6th

defendant, who in turn got the sale deed onto himself in respect

of item No.1 of plaint B schedule on 19.10.2013. In respect of

item No.2 of plaint B schedule property, basing on agreement of

sale-cum-GPA, 5th defendant mortgaged item No.2 of plaint B

schedule in favour of defendants 7 to 9 o 02.03.2012.

14. During the course of arguments, learned counsel for

petitioner would submit that defendants 1 to 5 remained

exparte in the suit and they are not contesting the suit. A

perusal of memo filed by 6th defendant reads as follows:

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Page 12 of 18

SRSJ,

CRP Nos.2483, 2560, 2561 of 2022

“It is submitted that the 5th defendant in the above suit died.

Hence, intimated.”

15. No particulars as to when death took place or details of

legal representatives are mentioned in the memo. It is also

pertinent to mention here that a memo was filed on behalf of

plaintiff on 05.09.2018 stating that to the knowledge of plaintiff

5th defendant had no legal heirs. The affidavit filed in support

of I.A.No.149 of 2022 would disclose that after filing of memo

dated 21.01.2020 plaintiff came to know about death of 5th

defendant. After enquiry, he could get the particulars of legal

representatives of 5th defendant and hence, filed the application.

However, in filing petition under Order XXII Rule 9 of CPC,

delay of 685 days is occurred.

16. The Hon’ble Apex Court in Ram Nath Sao alias Ram

Nath Sahu and others Vs. Gobardhan Sao and others1, was

pleased to condone the delay of 130 days in filing the

application for substitution while setting aside the High Court’s

order in declining to entertain the application.

17. In the case on hand, plaintiff prayed to set aside the

documents executed by defendants 1 to 4 in favour of 5th

1 AIR 2002 SC 1201

2023:APHC:1481

Page 13 of 18

SRSJ,

CRP Nos.2483, 2560, 2561 of 2022

defendant and consequential documents executed by 5th

defendant in favour of 6th defendant and defendants 7 to 9

respectively. Defendants 1 to 5 are not contesting the suit. 6th

defendant who has been contesting the suit filed memo which

has been extracted supra. Even a perusal of memo does not

indicate the date of death, except stating that 5th defendant

died. It is also pertinent to mention here that a memo, inturn,

was filed on behalf of plaintiff that 5th defendant died, however

to the knowledge of plaintiff, there are no legal heirs to 5th

defendant. In fact, plaintiff as P.W.1 deposed in his cross

examination that he does not know about death of 5th

defendant. A memo dated 05.09.2018 said to have been filed by

counsel for plaintiff, is without the signature of plaintiff. Apart

from that 6th defendant, who is a purchaser of item No.1 of

plaint B schedule is representing the estate of deceased 5th

defendant.

18. As per Section 2 (11) of CPC, “legal representative”

means a person who in law represents the estate of a deceased

person, and includes any person who intermeddles with the

estate of the deceased and where a party sues or is sued in a

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Page 14 of 18

SRSJ,

CRP Nos.2483, 2560, 2561 of 2022

representative character the person on whom the estate

devolves on the death of the party so suing or sued.

19. Thus, as per the above definition, 6th defendant also can

be termed as legal representative of 5th defendant in respect of

item No.1 of B schedule property. Once the representative of

deceased is already on record, on the date of party, suit does

not abate against the said person. In respect of item No.2 of B

schedule property, it is only a mortgage in favour of defendants

7 to 9 by 5th defendant. Hence, legal representatives of 5th

defendant should be brought on record. Since one of the legal

representatives of the deceased 5th defendant is already on

record, the suit does not abate on the death of 5th defendant.

20. In Mahabir Prasad Vs. Jage Ram and Ors.2, the Hon’ble

Apex Court held thus:

“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.”

2 AIR 1971 SC 742

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Page 15 of 18

SRSJ,

CRP Nos.2483, 2560, 2561 of 2022

21. In view of ratio referred supra, since the suit does not

abate against 5th defendant, delay to set aside abatement does

not arise as such there is no need to file petition to condone the

delay. In view of the same, the judgments relied on the learned

counsel have no application to the facts of the case.

22. All the rules of procedure are the handmaid of justice. The

language employed by the draftsman of procedural law may be

liberal or stringent, but the fact remains that the object of

prescribing procedure is to advance the cause of justice. In an

adversarial system, no party should ordinarily be denied the

opportunity of participating in the process of justice

dispensation. Unless compelled by express and specific

language of the Statute, the provisions of the CPC or any other

procedural enactment ought not to be construed in a manner

which would leave the court helpless to meet extraordinary

situations in the ends of justice.

23. Suit is to be disposed of on merits. When substantial

justice and technical considerations are pitted against each

other, the cause of substantial justice deserves to be preferred

2023:APHC:1481

Page 16 of 18

SRSJ,

CRP Nos.2483, 2560, 2561 of 2022

for the other side cannot claim to have vested right in injustice

being done.

24. In Jai Singh and Ors. Vs. Municipal corporation of

Delhi and Ors.3, while dealing with scope and ambit of Article

227 of the Constitution of India, the Hon’ble Apex Court held

thus:

25. Undoubtedly, the High Court has the power to reach

injustice whenever, wherever found. The scope and ambit of

Article 227 of the Constitution of India had been discussed

in the case of The Estralla Rubber v. Dass Estate (P) Ltd.

: (2001) 8 SCC 97 wherein it was observed as follows:

“The scope and ambit of exercise of power and

jurisdiction by a High Court under Article 227 of the

Constitution of India is examined and explained in a

number of decisions of this Court. The exercise of

power under this article involves a duty on the High

Court to keep inferior courts and tribunals within the

bounds of their authority and to see that they do the

duty expected or required of them in a legal manner.

The High Court is not vested with any unlimited

prerogative to correct all kinds of hardship or wrong

decisions made within the limits of the jurisdiction of

the subordinate courts or tribunals. Exercise of this

power and interfering with the orders of the courts or

tribunals is restricted to cases of serious dereliction

of duty and flagrant violation of fundamental

principles of law or justice, where if the High Court

does not interfere, a grave injustice remains

uncorrected. It is also well settled that the High

Court while acting under this article cannot exercise

its power as an appellate court or substitute its own

judgment in place of that of the subordinate court to

correct an error, which is not apparent on the face of

the record. The High Court can set aside or ignore

3

(2010) 9 SCC 385

2023:APHC:1481

Page 17 of 18

SRSJ,

CRP Nos.2483, 2560, 2561 of 2022

the findings of facts of an inferior court or tribunal, if

there is no evidence at all to justify or the finding is

so perverse, that no reasonable person can possibly

come to such a conclusion, which the court or

tribunal has come to.”

25. Thus, High Court while exercising power under Article

227 of the Constitution of India, can exercise its discretion to

interfere in the following circumstances:

(a) When the inferior court assumes jurisdiction erroneously in

excess of power.

(b) When refused to exercise jurisdiction.

(c) When found an error of law apparent on the face of record.

(d) Violated principles of natural justice.

(e) Arbitrary or capricious exercise of authority or discretion.

(f) Arriving at a finding which is perverse or based on no material.

(g) A patent or flagrant error in procedure.

(h)Order resulting in manifest injustice and

(i) Error both on facts and law or even otherwise.

26. The case on hand, in view of above discussion, this Court

is of the opinion that Court below failed to exercise jurisdiction

vested with it. The order of the trial court is liable to be set

aside.

27. Accordingly, the order dated 19.09.2022 in I.A.No.149 of

2022 in O.S.No.382 of 2013 on the file of the XIV Additional

District Judge-cum-Judge, Additional Family Court, Vijayawada

2023:APHC:1481

Page 18 of 18

SRSJ,

CRP Nos.2483, 2560, 2561 of 2022

is set aside. I.A.No.149 of 2022 stands allowed. Consequently,

I.A.No.150 of 2022 and I.A.No.151 of 2022 are allowed.

Petitioner shall file fair copy of the plaint after making

necessary amendments as indicated supra by impleading the

legal representatives of deceased 5th defendant i.e. his mother

Kancherla Annapurna, W/o K.Janakiramaiah as 10th defendant

in the suit.

28. Accordingly, the Civil Revision Petitions are allowed. No

costs.

As a sequel, all the pending miscellaneous applications

shall stand closed.

_________________________

SUBBA REDDY SATTI, J

23rd January, 2023

PVD

2023:APHC:1481