Case Note & Summary
The petitioner, M/s J.C.Gupta & Sons, a registered firm, was the plaintiff in a civil suit for partition and separate possession of plaint schedule property (O.S. No.244/2003) pending before the XLIII Additional City Civil Judge, Bengaluru. The suit was filed against R.Narasimha Reddy (defendant No.1) and others. During the pendency of the suit, defendant No.1 died. The Trial Court, on 28.05.2012, recorded that the suit stood abated qua the deceased defendant No.1. However, two legal representatives of the deceased were already on record as defendant Nos.2 and 3. The plaintiff filed IA No.7 on 01.07.2013 seeking recall of the abatement order, but this application was dismissed for default on 29.07.2013. The plaintiff then filed IA No.9 seeking recall of the dismissal order of IA No.7. The Trial Court, by common order dated 11.07.2014, rejected IA No.9 and also allowed IA No.8 filed by the defendants recalling the appointment of a Court Commissioner for recording evidence of PW-1. The plaintiff challenged this common order in writ petitions under Articles 226 and 227 of the Constitution. During the hearing, the petitioner's counsel submitted a memo stating that due to the demise of PW-1, the challenge to the order on IA No.8 was not pressed. The High Court considered only the challenge to IA No.9. The High Court expressed dismay that the Trial Court recorded abatement when legal representatives were already on record and that it dismissed IA No.7 for default. The High Court held that the Trial Court's order rejecting IA No.9 was unjustified and set it aside, directing the Trial Court to restore IA No.7 to its file and decide it afresh in accordance with law. The writ petitions were disposed of accordingly.
Headnote
A) Civil Procedure - Abatement of Suit - Suit for Partition - Legal Representatives on Record - The Trial Court erred in recording that the suit stood abated qua deceased defendant No.1 when two legal representatives were already on record as defendant Nos.2 and 3. The suit for partition does not abate in such circumstances. (Paras 3-4) B) Civil Procedure - Restoration of Application - Recall of Dismissal Order - The Trial Court's rejection of IA No.9 for recalling the dismissal of IA No.7 was unjustified as the earlier dismissal for default was erroneous. The High Court set aside the order and restored IA No.7 for fresh consideration. (Paras 3-4)
Issue of Consideration
Whether the Trial Court was justified in rejecting the plaintiff's application (IA No.9) for recalling the order dismissing IA No.7 for default, and whether the suit for partition could be held abated when legal representatives of the deceased defendant were already on record.
Final Decision
The High Court allowed the writ petitions in part, set aside the impugned order dated 11.07.2014 insofar as it relates to IA No.9, and directed the Trial Court to restore IA No.7 to its file and decide it afresh in accordance with law. The challenge to the order on IA No.8 was not pressed and was dismissed as withdrawn.
Law Points
- Suit for partition does not abate when legal representatives of deceased defendant are already on record
- Order to recall dismissal of restoration application allowed
- Trial Court's order rejecting IA No.9 set aside
