GURUBASAPPA SIDDAPPA Vs. NAGENDRAPPA VEERABHADRAPPA

JUDGEMENT

(1.) Pursuant to the, reference made be a learned Single Judge of this Court Hon'ble the Chief Justice has placed this M.S.A. for disposal before this Bench as it involves a question of law of considerable importance.

(2.) The question of law arises this way. Plaintiff instituted L.C. No. 224 of 1967 for possession and for mesne profits against four defendants. Defendant-3 was duly served but remained absent and he was placed ex-parte on 2.9.1968 by the Prl. Munsiff, Ranebennur, before whom the suit was instituted and was pending for hearing. The suit was subsequently dismissed on 2.6.1971 for default of the plaintiff. Plaintiff instituted Misc. Appln. No. 6 of 1971 on 17.6.1971 before the learned Munsiff. Defendant-3 remained absent again in the proceeding and he ultimately died on 23.3.1973. The miscellaneous application was allowed on 29.9.1973 and the suit was restored to file on 15.10.1973. In the suit, I.A. No. II was instituted on 23.1.1974 to bring the legal representatives of defendant-3 on record and I.A No. III was instituted by defendants 1 and 2 in the suit to dismiss the suit as abated as the legal representatives of defendant-3 were not brought on record in time and no application was given before the learned Munsiff to set aside the order of abatement. Accordingly, I. A. No.II was dismissed and I.A. No. III was allowed and the suit came to be dismissed as abated. Against that judgment and decree, the plaintiff filed R.A. No. 185 of 1974 before the Civil Judge, Haven. Therein, the plaintiff filed LA. No. IX under Or. XXII, R. 4 (4) CPC with a prayer to exempt him from bringing the legal representatives of defendant-3 on record. The learned Appellate Judge allowed the interlocutory application, granted exemption and on hearing, allowed the appeal, set aside the judgment and order of the trial Court and remanded the suit tor fresh disposal, in accordance with law, to the learned Munsiff. Aggrieved by the said judgment and order, some of the legal representatives of defendant-1 and defendant -2 have instituted the above second appeal before this Court.

(3.) The learned Counsel appearing for the appellants strenuously urged before us that the learned Civil Judge had! no jurisdiction to exercise the, powers contemplated under Or., XXII, R. 4 (4) CPC as amended by the Amending Act of 1976.