Case Note & Summary
The petitioners, Smt. Sarojini and Kempanna, were defendants in O.S. No.342/2017 filed by Smt. Tayawwa before the Principal Civil Judge and J.M.F.C, Gokak. The suit sought a declaration that a Will dated 02.11.2016 executed by late Durgappa Basalingappa Bhanvi in favor of the defendants was illegal and void, and that the plaintiff was the legally wedded wife of the deceased and entitled to the suit properties as a Class I legal heir. During the pendency of the suit, the original plaintiff Tayawwa died. The respondent, Yallappa Kempanna Badiagawad, filed an application under Order XXII Rule 5 read with Section 151 of the Code of Civil Procedure, 1908 (CPC) seeking to be substituted as the legal representative of the deceased plaintiff. The trial court allowed this application by order dated 20.03.2024 without issuing any notice to the petitioners/defendants. Aggrieved, the petitioners filed a writ petition under Articles 226 and 227 of the Constitution of India before the High Court of Karnataka, Dharwad Bench, seeking a writ of certiorari to quash the impugned order and dismiss the application. The High Court held that the trial court's order was passed in gross violation of the principles of natural justice and the mandatory requirement of notice under Order XXII Rule 5 CPC. The court noted that the application was allowed without any notice to the defendants, which vitiated the order. Consequently, the High Court allowed the writ petition, quashed the impugned order dated 20.03.2024, and directed the trial court to reconsider the application afresh after providing an opportunity of hearing to all parties.
Headnote
A) Civil Procedure Code - Substitution of Legal Representatives - Order XXII Rule 5 CPC - Natural Justice - The trial court allowed an application under Order XXII Rule 5 read with Section 151 CPC substituting the respondent as legal representative of the deceased plaintiff without issuing notice to the defendants/petitioners. Held that such an order is in gross violation of principles of natural justice and the mandatory requirement of notice under Order XXII Rule 5 CPC. The impugned order was quashed and set aside. (Paras 1-5) B) Civil Procedure Code - Writ Jurisdiction - Articles 226 and 227 of the Constitution of India - Certiorari - The High Court exercised its writ jurisdiction to quash an order passed by the Principal Civil Judge and J.M.F.C, Gokak in O.S. No.342/2017, as the order was passed without jurisdiction and in violation of natural justice. (Paras 1-5)
Issue of Consideration
Whether the trial court's order allowing substitution of the respondent as legal representative of the deceased plaintiff under Order XXII Rule 5 read with Section 151 CPC, without notice to the petitioners, is sustainable in law.
Final Decision
The High Court allowed the writ petition, quashed the impugned order dated 20.03.2024 passed by the Principal Civil Judge and J.M.F.C, Gokak in O.S. No.342/2017, and directed the trial court to reconsider the application afresh after providing an opportunity of hearing to all parties.
Law Points
- Order XXII Rule 5 CPC
- Section 151 CPC
- Natural Justice
- Substitution of legal representatives
- Writ of certiorari
