- 1 - NC: 2025:KHC:9120 WP No. 63926 of 2016 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 3RD DAY OF MARCH, 2025 BEFORE THE HON'BLE MR JUSTICE M.G.S. KAMAL WRIT PETITION NO. 63926 OF 2016 (GM-CPC) BETWEEN: SYED BASHEER AHMED MALIK S/O LATE ALHAJ S.A. MALIK, AGED ABOUT 68 YEARS, R/AT NO.7 OSHAUGHNESSY ROAD, LANGFORD GARDEN, BANGALORE-560 025 …PETITIONER (BY SRI. H.R. ANANTHA KRISHNA MURTHY, ADVOCATE) AND: 1. SRI. NAZEER AHMED SINCE DECEASED BY LRS 1(A). SMT. KHAIRUNNISA W/O LATE NAZEER AHMED AGED ABOUT 50 YEARS 1(B). SRI. SADIQ S/O LATE NAZEER AHMED AGED ABOUT 25 YEARS 1(C). SMT. TABASSUM D/O LATE NAZEER AHMED AGED ABOUT 23 YEARS. Digitally signed by ROOPA R U Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC:9120 WP No. 63926 of 2016 1(D). SMT. TARANUM D/O LATE NAZEER AHMED AGED ABOUT 23 YEARS. 1(E). SRI. UMME SALMA D/O LATE NAZEER AHMED AGED ABOUT 21 YEARS. 1(F). MISS MUBASHEERA SULTANA @ BABY D/O LATE NAZEER AHMED AGED ABOUT 20 YEARS ALL THE LR'S 1(A) TO 1(F) ARE R/AT 33/3, IST FLOOR, IST MAIN ROAD, PUKRAJ LAYOUT, MICO GATE INDUSTRIAL ROAD, BENGALURU-560 030. 2. SRI ANSAR DEAD BY LRS 2(A). SMT. SYEDA NAZIMA W/O LATE SYED ANSAR SAB ZAWARI AGED ABOUT 48 YEARS. 2(B). SRI. SYED MOHSIN S/O LATE SYED ANSAR SAB ZAWARI AGED ABOUT 42 YEARS. 2(C). SYEDA SUMAYA D/O. LATE SYED ANSAR SAB ZAWARI AGED ABOUT 38 YEARS. 2(D). SYEDA SADIYA D/O LATE SYED ANSAR SAB ZAWARI - 3 - NC: 2025:KHC:9120 WP No. 63926 of 2016 AGED ABOUT 36 YEARS. 2(E). SYEDA SAJIDA D/O LATE SYED ANSAR SAB ZAWARI AGED ABOUT 33 YEARS 2(F). SYEDA TAMANNA D/O LATE SYED ANSAR SAB ZAWARI AGED ABOUT 30 YEARS. 2(G). SYEDA ZUBAIR S/O LATE SYED ANSAR SAB ZAWARI AGED ABOUT 25 YEARS. ALL ARE R/AT NO.9/1 CHURCH ROAD, 2ND CROSS, BASAVANAGUDI, BANGALORE-560 004. 3. SRI. AKTHAR S/O LATE ABDUL RAWOOF PORTION OF PROPERTY NO.57, 6TH CROSS H. SIDDAIAH ROAD BENGALURU-560 027 4. SRI. AFSAR S/O LATE ABDUL RAWOOF PORTION OF PROPERTY NO.57, 6TH CROSS, H. SIDDAIAH ROAD, BENGALURU-560 027. 5. SRI. ARUN KUMAR S/O LATE SHIVARUDRAIAH PORTION OF PROPERTY - 4 - NC: 2025:KHC:9120 WP No. 63926 of 2016 NO.57, 6TH CROSS, H. SIDDAIAH ROAD, BENGALURU-560 027. 6. SRI. MALLESH S/O LATE SHIVARUDRAIAH PORTION OF PROPERTY NO.57, 6TH CROSS, H. SIDDAIAH ROAD, BENGALURU-560 027. 7. SMT. LALITHA, W/O. B. L. KESHAVAMURTHY, AGED ABOUT 68 YEARS, R/AT: NO.201, GR PEARL APARTMENTS, CHUNCHAGATTA MAIN ROAD, J.P.NAGAR 7TH PHASE, BENGALURU - 560 078. …RESPONDENTS (BY SRI. A.M. SURESH REDDY, ADVOCATE FOR R3 & R4; SRI. JAYANTH VENKAT RAM, ADVOCATE FOR R7; V/O/D 12.02.2024, NOTICE TO R1(A) TO R1(G), R5 & R6 NOTICE THROUGH PAPER PUBLICATION IS ACCEPTED; V/O/D 08.03.2021 NOTICE TO R2(A) TO R2(G) IS H/S) THIS WP IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE ORDER DATED 14.11.2016 IN O.S.2253/2013 PASSED ON I.A.19 PASSED BY THE HON'BEL CITY CIVIL JUDGE AT BENGALURU AT ANNEXURE-F AND ETC. - 5 - NC: 2025:KHC:9120 WP No. 63926 of 2016 THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN 'B' GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE M.G.S. KAMAL ORAL ORDER This petition is filed by the plaintiffs in O.S No.2253/2013 which filed against the respondents herein for relief of judgment and decree directing the defendants/respondents to quit, deliver and vacate possession of the suit schedule property and for payment of arrears of rent and mesne profits, pending consideration on the file of City Civil Court CCH-3, Bengaluru. It appears that defendant No.5 filed a memo dated 25.11.2014 which reads as under: MEMO The Defendant No.5 submits as follows:- It is informed by the brother of the 5th Defendant that defendant No.5 was expired and possession of Schedule premises has been handed over to their landlord Smt.Lalitha. - 6 - NC: 2025:KHC:9120 WP No. 63926 of 2016 The copy of letter addused to counsel of the Defendant No.5 and death certificate are herewith produced for kind perusal of this Hon'ble Court. Wherefore, it is most humbly prayed this Hon'ble Court may kindly be pleased to take this memo on record, in the ends of justice and equity. 2. Since, in the aforesaid memo the brother of defendant No.5 has averred that, he has handed over the portion of the suit property which was in possession defendant No.5, to one Smt.Lalitha, whom he claims to be the landlord, the petitioner/plaintiff filed an application in I.A No.19 under Order 22 Rule 4 read with 151 of Code of Civil Procedure seeking to bring on record, the said Smt.Lalitha as the legal representative of deceased defendant No.5. 3. Objection with regard to the said application field by the said proposed legal representative of deceased defendant No.5, contending inter-alia that proposed legal representative is not the blood relative to deceased defendant No.5. It is also contended that defendant No.5 has independent right, title and - 7 - NC: 2025:KHC:9120 WP No. 63926 of 2016 interest over the property and suit for ejectment as against proposed defendant would not be maintainable. That the plaintiff was required to file a comprehensive suit for declaration of title and recovery of possession. Hence, sought for dismissal of the said application. 4. The Trial Court vide order dated 14.11.2016 dismissed the said application. Being aggrieved by the same, the petitioner/plaintiff is before this Court. 5. Sri Anantha Krishna Murthy learned counsel appearing for the petitioner taking this Court through the documents and the petition averments submits that the Trial Court grossly erred in rejecting the application by prejudging the case of the parties. It is his submission that, at the time of consideration of the application under Order 22 Rule 4 of CPC, the Trial Court was not required to go with the merits of the case. All that the Trial Court was required to look into - 8 - NC: 2025:KHC:9120 WP No. 63926 of 2016 is whether the proposed legal representatives would qualify to be brought on record as legal representative, which is if there was any subsisting cause of action for continuation of the suit. He further submits that it is only after the said proposed legal representatives coming on record, the Court can adjudicate the rights between the parties and come to a conclusion on the merits of the case. He further refers to sub-Section (11) and Section 2 of CPC to contend that the terms "legal representative" also includes an "intermeddler" with the property of the deceased. 6. He relies upon the judgement of the Apex Court in the case of Custodian Of Branches Of Banco National Ultramarino Vs. Nalini Bai Naique reported in AIR 1989 SC 1589 and referring to paragraph No.4 of the said judgment submits that the term legal representative includes any person, who - 9 - NC: 2025:KHC:9120 WP No. 63926 of 2016 intermeddle with the estate of the deceased. That being so since in the memo dated 25.11.2014 brother of deceased defendant No.5 stated to have handed over the portion of the property to said Smt.Lalitha, he submits that said Smt.Lalitha would fall within the meaning of term "intermeddler" though not ”legal representative”. Hence, seeks for setting aside the order passed by the Trial Court. 7. In response, Sri. Jayanth VenKat Ram, learned counsel appearing for 7th respondent namely Smt.Lalitha vehemently submits that, the suit is one for decree of ejectment filed on the premise of the original defendant No.1 being the tenant and remaining defendants being sub-tenants. He submits that the very averments made in the memo would indicate that the brother of deceased defendant No.5 has treated and considered the said Smt.Lalitha, the proposed legal representative to be the landlord. The - 10 - NC: 2025:KHC:9120 WP No. 63926 of 2016 impleadment of such a person as legal representative of deceased sub-tenant would change the nature and scope of the suit, which aspect has been considered by the Trial Court and accordingly, has come to right conclusion of rejecting the application. No errors can be found warranting interference at the hands of this Court. He also refers to copy of the plaint in OS No.8701/2011 and submits that the very same plaintiff, the petitioner herein has filed the comprehensive suit in respect of the very same property, in which the proposed legal representative Smt.Lalitha has been arrayed as defendant No.4. 8. He submits that the said suit is one for declaration and possession. In the light of the parallel proceedings, being pending consideration between the same parties, it is his submission that impleading the said Smt.Lalitha as legal representative of deceased defendant No.5 would run, contrary to the very case - 11 - NC: 2025:KHC:9120 WP No. 63926 of 2016 of the plaintiff, leading to anomaly. Hence, seeks for rejection of the petition. 9. Learned counsel appearing for respondent Nos.3 and 4 supplementaring submission made by respondent No.7 refers the paragraph No.3 of the plaint to contend that even according to the petitioner defendant No.1 was the tenant in respect of a portion of the measuring 25 feet X 60 feets and that the plaintiffs claim to have inherited/acquired the said property through his step mother and that he also claimed to have purchased additional extent of 50 X 60 feet from the original owner. Thus, he submits that in the light of the uncertainty of the extent of the property being claimed by the petitioner in the suit as a landlord and the extent of the property being claimed by him as a owner in another suit in OS No.8701/2011, impleading the 7th respondent as such - 12 - NC: 2025:KHC:9120 WP No. 63926 of 2016 the legal representative of purported sub-tenant is not justified. Hence, seeks for dismissal of the petition. 10. Heard and perused the records. 11. From the perusal of the records and submission made by the learned counsel for the parties what emanates is that the petitioner claiming to be the absolute owner of the property has instituted the above the suit against the original defendants for relief of deliver of possession, the extent of the land shown therein as 75 X 60 feet. 12. On specific query by this Court, the learned counsel appearing for the petitioner submits that, the property described in the schedule to the plaint is in possession of the defendants, who are the tenants and sub-tenants respectively and his suit in OS No.8701/2011 is in respect of another extent of land and the properties the subject matter of these suits are different and distinct. - 13 - NC: 2025:KHC:9120 WP No. 63926 of 2016 13. It is settled position of law, while considering an application under Order 22 all that the Court is required to keep in mind, if there is any cause of action subsisting after demise of the original defendant or if, there is any alienation of interest during the subsisting of the suit. Such a consideration, in any case would not amount to determination of any rights of the parties, which is always kept open at the time of determination of main issue in controversy. 14. Perusal of the impugned order, in the light of aforesaid settled principles of law would indicate that the Trial Court has indeed adjudicate the claim of the parties as emanating from the unnumbered second paragraph at running pages No.53 and 54 of the writ petition, which reads as under: ”On thorough scrutiny of pleadings and connected records, it is ascertained that plaintiff has not produced any documents to show that 5th defendant was a tenant/sub-tenant under him in respect of suit property and 5th defendant has paid rent to the plaintiff at any point of time. It is relevant to note that plaintiff has not produced copy - 14 - NC: 2025:KHC:9120 WP No. 63926 of 2016 of the Rent/Lease Agreement or copy of the rent received receipt or any other document, which enables the court to believe that there was a landlord and tenant relationship between plaintiff and 5th defendant at any point of time. In the absence of any piece of document, supporting the contention of plaintiff, it is very difficult to accept the contention of plaintiff that once 5th defendant was a tenant/sub-tenant under him in respect of suit property and he had collected rents from him. In the absence of proved relationship between plaintiff and 5th defendant, as landlord and tenant/sub-tenant, it is not fair on the part of the court to hold that Smt. Lalitha w/o. Sri. B.L.Keshavamurthy (from whom, plaintiff has alleged to have been purchased the suit property), as a legal representative of the deceased 5th defendant. More so, there is a title dispute between the plaintiff and the husband of Smt.Lalitha in respect of suit property. In the above circumstances, plaintiff is not entitle for the relief so sought for. Accordingly, point No.1 is answered in the negative". 15. Whether there is relationship between the landlord or tenant or not? Whether defendant No.5 was the sub-tenant of defendant No.1 in the present suit as claimed by the petitioner or he was the tenant under the said Smt.Lalitha or not? is a matter that is required to be adjudicated during the trial. 16. As rightly pointed out by the learned counsel for the petitioner from the contents of the memo - 15 - NC: 2025:KHC:9120 WP No. 63926 of 2016 dated 25.11.2014 filed upon the purported instruction of the brother of deceased defendant No.5, it is clear that the brother of deceased defendant No.5 has handed over the portion of the property in his possession to said Smt.Lalitha, as she was the landlord of defendant No.5. If, this aspect was not brought on record the natural course would have been to bring on record, the legal representative of deceased defendant No.5. The said memo is preceded by the letter dated 19.11.2014 purportedly, addressed by the brother of deceased defendant No.5 to the counsel of defendant No.5. Perusal of the said letter would indicate that the brother of the deceased defendant No.5 was only legal representative and that after the death of defendant No.5, he having found said Smt.Lalitha to be the owner of the property he has handed over the vacant possession to said Smt.Lalitha. Which would indicate said Smt.Lalitha to - 16 - NC: 2025:KHC:9120 WP No. 63926 of 2016 have been considered as the landlord by the deceased defendant No.5, falling within the meaning of the term "intermeddler" of deceased defendant No.5. Since, the brother of the defendant claims to be the only legal representative of deceased defendant No.5 and no other details have been brought on record and there being no denial of proposed defendant Smt.Lalitha having taken the possession from the brother of the deceased defendant No.5 as contended in the memo, this Court is of the considered view that said Smt.Lalitha would fall within the meaning of "intermeddler" as defined under sub-Section (11) of Section 2 of the Code of Civil Procedure. 17. 17. When the aforesaid facts have been brought on record, as rightly pointed out by learned counsel for the petitioner, even if the petitioner succeeds in the suit, since said Smt.Lalitha having been put in possession in place of defendant No.5, unless the said - 17 - NC: 2025:KHC:9120 WP No. 63926 of 2016 Smt.Lalitha was brought on record, the decree may not be effectively implement. It is only these facts which required to be considered, at the time of adjudicate in the application under Order 22 of CPC and nothing else. 18. In the considered view of this Court, the finding given by the Trial Court with regard to the merits of the case of the parties at this juncture is unwarranted, which as already noted above, requires to be adjudicated during the trial. 19. For the aforesaid reasons, the petition succeeds. The impugned order is set aside. The application filed by the petitioner is allowed and permitting the petitioner is to bring on record, the said Smt.Lalitha as party to the suit. 20. It is made clear that the order passed herein above shall not be construed as determination of rights and contention of the parties. No opinion is - 18 - NC: 2025:KHC:9120 WP No. 63926 of 2016 expressed in any manner with regard to rights of the parties in this matter. The same shall be adjudicated in the manner known to law in the suit pending before the Trial Court. 21. It is further made clear that, if there are any other legal representatives / blood relatives of the deceased defendant No.5 it is open for any other parties to bring to the notice of the Court for appropriate orders. SD/- (M.G.S. KAMAL) JUDGE KBM List No.: 1 Sl No.: 22 CT:SNN