1 Reserved on : 20.06.2025 Pronounced on : 30.07.2025 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 30TH DAY OF JULY, 2025 BEFORE THE HON'BLE MR. JUSTICE M. NAGAPRASANNA WRIT PETITION No.20912 OF 2022 (GM – CPC) BETWEEN: SRI G.VASANTH @ SHADAKSHARI SINCE DECEASED BY HIS LR’S 1 . SMT.SHANTHA KUMARI G., W/O.LATE G.SHADAKSHARI, AGED ABOUT 64 YEARS. 2 . SRI SHANKAR S., S/O LATE G.SHADAKSHARI, AGED ABOUT 49 YEARS. 3 . SRI SACHIN KUMAR S., S/O LATE G.SHADAKSHARI, AGED ABOUT 41 YEARS. PETITIONERS NO.1 TO 3 ARE RESIDING AT NO.34, 1ST ANJANEYA TEMPLE STREET, SHESHADRIPURAM, BENGALURU – 560 020. 2 4 . SMT. ANITHA P.K., D/O.LATE G.SHADAKSHARI, W/O.PRAVEEN KUMAR K.R, AGED ABOUT 46 YEARS, R/A NO.18, 2ND CROSS, PALACE CROSS ROAD, CHAKRAVARTHY LAYOUT, BENGALURU – 560 020. ... PETITIONERS (BY SRI VIJAYA KUMAR K., ADVOCATE) AND: 1 . SRI H.ANANTH S/O HANUMANTHAPPA, AGED ABOUT 52 YEARS, RESIDING AT P.J.BADAVANE, DAVANAGERE – 570 002. SRI RAMAKRISHNAPPA SINCE DECEASED BY HIS LR 2 . SRI A.N.SANTHOSH KUMAR S/O LATE NARAYANAGOWDA, AGED ABOUT 35 YEARS, RESIDING AT NO.1050, SANTHOSH NILAYA, 8TH CROSS, 10TH MAIN ROAD, JUDICIAL LAYOUT, ALLALASANDA, G.K.V.K. POST, BENGALURU – 560 064. ... RESPONDENTS (BY SRI BALARAM M.L., ADVOCATE FOR R-1; SRI MITHUN G.A., ADVOCATE FOR R-2) THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR RECORDS IN 3 O.S.NO.2/2017 PENDING ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC, GAURIBIDANUR AND SET ASIDE THE ORDER DTD 19.8.2022 PASSED ON I.A.NO.12 TO 15 FILED BY THE R2 ANNEXURE-A AND CONSEQUENTLY DISMISS I.A.NO.12 TO 15, BY ALLOWING THIS WRIT PETITION. THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 20.06.2025, COMING ON FOR PRONOUNCEMENT THIS DAY, THE COURT MADE THE FOLLOWING:- CORAM: THE HON'BLE MR JUSTICE M.NAGAPRASANNA CAV ORDER The petitioners/defendants 2(a) to (d) are before this Court calling in question an order dated 19-08-2022 passed by the Senior Civil Judge and JMFC, Gowribidanur on I.A.Nos.12 to 15 filed by respondent No.2/defendant No.1(a) under Order XXII Rule 4 of the CPC seeking permission to come on record as legal representative of defendant No.1 etc. 2. Heard Sri Vijayakumar, learned counsel appearing for the petitioners, Sri M.L.Balaram, learned counsel appearing for respondent No.1 and Sri G.A. Mithun, learned counsel appearing for respondent No.2. 4 3. Facts, in brief germane are as follows: - The plaintiff/1st respondent herein institutes a suit in O.S.No.2 of 2017 initially against the 1st defendant for declaration that the plaintiff is the absolute owner in possession and enjoyment of the suit schedule properties. A second prayer was sought seeking declaration that the sale deed dated 03-05-2017 executed by 1st defendant in favour of the 2nd defendant in respect of the suit schedule property is not binding on him and consequently to grant perpetual injunction restraining the defendants from interfering with the suit schedule property. During the pendency of the said suit, an application in I.A.No.III was filed seeking to implead defendant No.2 as party defendant to the proceedings. The said I.A. comes to be allowed. Sometime thereafter, defendant No.2 dies and his legal representatives four in number are brought on record as defendants 2(a) to (d). The defendants then file their respective written statement and the trial progressed. 4. During the pendency of proceedings, defendant No.1 dies on 10-09-2019. The General Power of Attorney holder of the 1st defendant files a memo to permit him to come on record and 5 prosecute the case on behalf of the 1st defendant, as he had no issues or any legal representative. In terms of the order dated 9-10-2020 the concerned Court rejects the memo filed by the GPA holder of the 1st defendant. On 10-08-2022, the 2nd respondent/defendant No.1(a) files three applications – one under Order XXII Rule 4 CPC seeking impleadment into the proceedings, second, under Order XXII Rule 9 CPC seeking condonation of delay and the third one, under Order XXII Rule 10 of the CPC seeking setting aside of abatement contending that the 1st defendant who then died was his uncle and his uncle had executed a Will in his favour during his life time. Defendant No.2(c) files objections to all the applications. The concerned Court allows applications in terms of its order impugned dated 19.08.2022. It is this that has driven the petitioners/defendants 2(a) to (d), legal representatives of defendant No.2 to this Court in this writ petition. 5. Learned counsel appearing for the petitioners/ defendants 2(a) to (d) would vehemently contend that the order allowing the applications, without conduct of any inquiry, is on the face of it erroneous. He would submit that defendant No.1 had executed a 6 GPA in favour of Rajanna. Defendant No.1 had denied the alleged GPA and sale deed executed by defendant No.1. When such being the case, there can be no question of impleading the legal heirs of defendant No.1, as defendant No.1 when he had filed the written statement had categorically denied execution of GPA or any sale deed. Therefore, it was for the plaintiff to prove that he was in possession of the property to claim the relief of declaration. He would further contend that the so-called representative of defendant No.1 has now setup a Will only to defeat the rights of the present petitioners/defendants 2(a) to (d)who are in possession of the property pursuant to the sale deed executed in the year 2017. 6. Per contra, learned counsel appearing for the respondents would vehemently refute the submissions to contend that a judgment cannot be obtained in thin air. There must be a defendant. It is the plaintiff who had impleaded defendant No.1 one Ramakrishnappa, originally. The said Ramakrishnappa died during the pendency of the suit. Therefore, his legal representative must be brought on record. Somebody should pursue the written statement already filed by the original 1st defendant. It is the case 7 of the petitioners that defendant No.1 has denied execution of the GPA in favour of one Rajanna. Rajanna in turn is said to have sold the property to the plaintiff. All these matters will have to be proved by way of evidence. What the proposed defendant No.1(a) would do cannot now be foreseen to stall his entry into the proceedings. They would in unison contend that defendant No.1(a) is a proper and necessary party to the proceedings. 7. I have given my anxious consideration to the submissions made by the respective learned counsel and have perused the material on record. 8. The afore-narrated maze of facts are as found in the pleadings. A coordinate Bench of this Court owing to the plea projected, granted an interim order of stay of further proceedings before the concerned Court by the following order: “Sri Vijaya Kumar K., the learned counsel for the petitioner, is heard on grant of ad interim order. The learned counsel submits that the applications filed by the purported legatees of the deceased first respondent are allowed without an enquiry under Order XXII Rule 5 of the Code of Civil Procedure, 1908. He urges this amongst other grounds such as the prior orders of the trial Court on the application filed under Order XXII of CPC in support of the petition. 8 In consideration of these submissions, further proceeding in the suit in O.S.No.02/2017 on the file of the Senior Civil Judge and JMFC, Gauribidanur is stayed till the next date of hearing. There shall be emergent notice to the respondents returnable by 12.12.2022. The learned counsel for the petitioner, in addition to furnishing requisites for issuance of such notice, shall also serve copies of the writ papers on the learned counsel for the respondents before the trial Court and file acknowledgment indicating the name of the learned counsel to whom the copy is served in this regard by the next date of hearing.” The said interim order is in subsistence even today. The issue now would be, whether the order that is passed permitting impleadment of the applicant to come on record as legal representative of the 1st defendant and the alleged Will is in consonance with law or not? 9. Now it becomes apposite to refer to the judgments of the Apex Court interpreting Order XXII Rule 4 of the CPC. The Apex Court in the case of SUSHIL K. CHAKRAVARTY v. TEJ PROPERTIES PRIVATRE LIMITED1, has held as follows: “…. …. …. 31. It is possible for us, in the facts of this case, to record an answer to the question posed above. We shall now endeavour to do so: 1 (2013) 9 SCC 642 9 31.1. It is not a matter of dispute, that Sushil K.C. had died on 3-6-2003. It is also not a matter of dispute, that on 29- 8-2003 the plaintiff Tej Properties (the respondent herein) had filed an interlocutory application, being IA No. 9676 of 2003 under Order 22 Rule 4(4) of the Code of Civil Procedure, for proceeding with CS (OS) No. 2501 of 1997 ex parte, by bringing to the notice of the learned Single Judge, that Sushil K.C. had died on 3-6-2003. That being the acknowledged position, when the learned Single Judge allowed the proceedings in CS(OS) No. 2501 of 1997 to progress further, it is imperative to infer, that the Court had taken a conscious decision under Order 22 Rule 4(4) of the Code of Civil Procedure, to proceed with the matter ex parte as against interests of Sushil K.C. (the defendant therein), without first requiring Tej Properties (the plaintiff therein) to implead the legal representatives of the deceased defendant. It is therefore, that evidence was recorded on behalf of the plaintiff therein i.e. Tej Properties (the respondent herein) on 28-1-2005. 31.2. In the aforesaid view of the matter, there is certainly no doubt in our mind, that being mindful of the death of Sushil K.C., which came to his knowledge through IA No. 7696 of 2006, a conscious decision was taken by the learned Single Judge, to proceed with the matter ex parte as against the interests of Sushil K.C. This position adopted by the learned Single Judge in CS (OS) No. 2501 of 1997 was clearly permissible under Order 22 Rule 4(4) of the Code of Civil Procedure. 31.3. A trial court can proceed with a suit under the aforementioned provision, without impleading the legal representatives of a defendant, who having filed a written statement has failed to appear and contest the suit, if the court considers it fit to do so. All the ingredients of Order 22 Rule 4(4) of the Code of Civil Procedure stood fully satisfied in the facts and circumstances of this case. In this behalf all that needs to be noticed is, that the defendant Sushil K.C. having entered appearance in CS (OS) No. 2501 of 1997, had filed his written statement on 6-3-1998. Thereafter, the defendant Sushil K.C. stopped appearing in the said civil suit. Whereafter, he was not even represented through counsel. The order to proceed against Sushil K.C. ex parte was passed on 1- 8-2000. Even thereupon, no efforts were made by Sushil K.C. to 10 participate in the proceedings of CS (OS) No. 2501 of 1997, till his death on 3-6-2003. 31.4. It is apparent that the trial court was mindful of the factual position noticed above, and consciously allowed the suit to proceed further. When the suit was allowed to proceed further, without insisting on the impleadment of the legal representatives of Sushil K.C. it was done on the court's satisfaction, that it was a fit case to exempt the plaintiff (Tej Properties) from the necessity of impleading the legal representatives of the sole defendant Sushil K.C. (the appellant herein). This could only have been done, on the satisfaction that the parameters postulated under Order 22 Rule 4(4) of the Code of Civil Procedure, stood complied. The fact that the aforesaid satisfaction was justified, has already been affirmatively concluded by us, hereinabove. 31.5. We are therefore of the considered view, that the learned Single Judge committed no error whatsoever in proceeding with the matter in CS (OS) No. 2501 of 1997 ex parte, as against the sole defendant Sushil K.C., without impleading his legal representatives in his place. We therefore, hereby, uphold the determination of the learned Single Judge, with reference to Order 22 Rule 4(4) of the Code of Civil Procedure.” (Emphasis supplied) The Apex Court holds that the application under Order XXII Rule 4 CPC or Order IX Rule 13 CPC for impleading the legal representatives on the death of the sole defendant during the pendency of the suit needs an inquiry. Need for a conscious decision by the Court to grant such relief or exemption depends upon satisfaction of the parameters under Order XXII Rule 4 CPC. 11 10. A little earlier to the aforesaid judgment, in the case of JALADI SUGUNA v. SATYA SAI CENTRAL TRUST2, the Apex Court has held as follows: “…. …. …. 14. When a respondent in an appeal dies, and the right to sue survives, the legal representatives of the deceased respondent have to be brought on record before the court can proceed further in the appeal. Where the respondent-plaintiff who has succeeded in a suit, dies during the pendency of the appeal, any judgment rendered on hearing the appeal filed by the defendant, without bringing the legal representatives of the deceased respondent-plaintiff on record, will be a nullity. In the appeal before the High Court, the first respondent therein (Suguna) was the contesting respondent and the second respondent (the tenant) was only a pro forma respondent. When the first respondent in the appeal died, the right to prosecute the appeal survived against her estate. Therefore, it was necessary to bring the legal representative(s) of the deceased Suguna on record to proceed with the appeal. 15. Filing an application to bring the legal representatives on record, does not amount to bringing the legal representatives on record. When an LR application is filed, the court should consider it and decide whether the persons named therein as the legal representatives, should be brought on record to represent the estate of the deceased. Until such decision by the court, the persons claiming to be the legal representatives have no right to represent the estate of the deceased, nor prosecute or defend the case. If there is a dispute as to who is the legal representative, a decision should be rendered on such dispute. Only when the question of legal representative is determined by the court and such legal representative is brought on record, 2 (2008) 8 SCC 521 12 can it be said that the estate of the deceased is represented. The determination as to who is the legal representative under Order 22 Rule 5 will of course be for the limited purpose of representation of the estate of the deceased, for adjudication of that case. Such determination for such limited purpose will not confer on the person held to be the legal representative, any right to the property which is the subject-matter of the suit, vis-à-vis other rival claimants to the estate of the deceased. 16. The provisions of Rules 4 and 5 of Order 22 are mandatory. When a respondent in an appeal dies, the court cannot simply say that it will hear all rival claimants to the estate of the deceased respondent and proceed to dispose of the appeal. Nor can it implead all persons claiming to be legal representatives, as parties to the appeal without deciding who will represent the estate of the deceased, and proceed to hear the appeal on merits. The court cannot also postpone the decision as to who is the legal representative of the deceased respondent, for being decided along with the appeal on merits. The Code clearly provides that where a question arises as to whether any person is or is not the legal representative of a deceased respondent, such question shall be determined by the court. The Code also provides that where one of the respondents dies and the right to sue does not survive against the surviving respondents, the court shall, on an application made in that behalf, cause the legal representatives of the deceased respondent to be made parties, and then proceed with the case. Though Rule 5 does not specifically provide that determination of legal representative should precede the hearing of the appeal on merits, Rule 4 read with Rule 11 makes it clear that the appeal can be heard only after the legal representatives are brought on record. 17. The third respondent, who is the husband of the deceased, wants to come on record in his capacity as a sole legal heir of the deceased, and support the case of the Trust that there was a valid gift by the deceased in its favour. On the other hand, the appellants want to come on record as testamentary legatees in whose favour the suit property was 13 bequeathed by will, and represent the estate of the deceased Suguna as inter-meddlers. They want to continue the contest to the appeal. When Suguna, the first respondent in the appeal before the High Court died, the proper course for the High Court, was first to decide as to who were her legal representatives. For this purpose the High Court could, as in fact it did, refer the question to a subordinate court under the proviso to Rule 5 of Order 22 CPC, to secure findings. After getting the findings, it ought to have decided that question, and permitted the person(s) who are held to be the legal representative(s) to come on record. Only then there would be representation of the estate of the deceased respondent in the appeal. The appeal could be heard on merits only after the legal representatives of the deceased first respondent were brought on record. But in this case, on the dates when the appeal was heard and disposed of, the first respondent therein was dead, and though rival claimants to her estate had put forth their claim to represent her estate, the dispute as to who should be the legal representative was left undecided, and as a result the estate of the deceased had remained unrepresented. The third respondent was added as the legal representative of the deceased first respondent only after the final judgment was rendered allowing the appeal. That amounts to the appeal being heard against a dead person. That is clearly impermissible in law. We, therefore, hold that the entire judgment is a nullity and inoperative. 18. We may look at it from yet another angle. The relief sought by Suguna in the suit was one in regard to which the right to sue would have survived to her legal representatives if she had died during the pendency of the suit. She successfully prosecuted the suit and obtained the decree declaring the deed to be void. The said decree would continue to be in force unless it is set aside in a manner known to law. It could be set aside in an appeal filed by the aggrieved party, but only after hearing the plaintiff who had secured the decree. Pronouncement of judgment in a case, can be only after the case has been heard. (Vide Section 33, Order 20 Rule 1 and Order 41 Rule 30 CPC.) When the respondent-plaintiff died and his/her estate remained unrepresented, it cannot be said that the appeal was “heard”. When the respondent-plaintiff died, the legal representatives who succeeded to her estate will have to be brought on record 14 and they should be heard in their capacity as persons representing the estate of the deceased plaintiff. If they are not heard, there is no “hearing” of the appeal in the eye of the law. Consequently, the judgment of the trial court could not be disturbed or set aside by the appellate court. Be that as it may. 19. We, accordingly, allow this appeal and set aside the judgment dated 19-9-2006, restore the appeal to the file of the High Court, with the following directions: (i) The High Court shall first decide the dispute between the husband of the deceased on the one hand, and her nieces and nephews on the other, after considering the evidence and findings dated 28-11-2005 recorded by the trial court and hearing the rival claimants. (ii) After such determination, the person(s) determined to be the person(s) entitled to represent the estate of the deceased shall be brought on record as the legal representatives of the deceased. (iii) Thereafter, the appeal shall be heard on merits and disposed of in accordance with law.” (Emphasis supplied) The Apex Court holds that an inquiry must be conducted prior to the decision permitting impleadment. If there is no dispute and no objection, it can be allowed, but if there is a dispute with regard to entry of a person to the proceedings, it cannot be allowed without any inquiry. When this being the law, what the concerned Court has been done on the application is germane to be noticed. The concerned Court allows the application by the following order: 15 “Sri R.C. seriously opposed for allowing the applications. Heard. Satisfied as to the cause shown in the affidavits i.e., I.A.Nos. 10 to 15. Same are allowed subject to burden of proof on them to prove that, they are the legal representatives of deceased defendant No.1 and alleged Will. Amendment and amended plaint by 22-08-2022.” The order, to say the least, is preposterous. There is not even a semblance of reasoning as to why the legal representative of the deceased defendant No.1 and the alleged Will are to come on record. There is a serious dispute by defendant Nos. 2(a) to (d) before the concerned Court to permit impleadment of defendant No.1(a) to come on record. When that is the case, the manner in which the order impugned is passed, is on the face of it, abdication of judicial duty to consider the application and the objections on their merits. In that light, the order dated 19-08-2022 is rendered unsustainable. The unsustainability of it would lead to its obliteration and a direction to the concerned Court to redo the exercise of consideration of the application filed by the said legal representative of defendant No.1 and the objections filed thereto by the present petitioners and pass necessary orders in accordance with law. 16 11. For the aforesaid reasons, I pass the following: O R D E R (i) Writ Petition is allowed. (ii) Order dated 19-08-2022 passed by the Senior Civil Judge and JMFC, Gowribidanur on I.A.Nos. 12 to 15 in O.S.No.2 of 2017 is set aside. The matter is remitted back to the hands of the concerned Court to pass necessary orders in accordance with law, bearing in mind the observations made in the course of the order. (iii) The concerned Court shall pass necessary orders within 8 weeks from the date of receipt of a copy of this order. Consequently, I.A.No.1 of 2025 also stands disposed. SD/- (M.NAGAPRASANNA) JUDGE bkp CT:MJ