RAMAKKA Vs. RAMALINGAPPA

JUDGEMENT

(1.) This petition is filed seeking the following prayer:

(2.) Sri.Kalyan R., learned counsel for the petitioners submits that the petitioners-plaintiffs have filed O.S.No.81/2008 for partition and separate possession of the suit schedule property. During the pendency of the said suit, defendant No.1-Smt.Gowramma died on 6/1/2010. However, the legal representatives of deceased defendant No.1 could not be brought on record during the pendency of the said suit. The said suit came to be dismissed on 2/12/2011. Being aggrieved, the petitioners-plaintiffs have filed R.A.No.1/2012 before the Court of Senior Civil Judge and JMFC, Chintamani (for short, 'Appellate Court') and in the said appeal, I.A.No.1 came to be filed on 17/4/2012 under Order XXII Rule 4 read with Sec. 151 of CPC to bring the legal representatives of defendant No.1 on record, later I.A.Nos.3, 4 & 5 came to be filed on 26/11/2014 under Sec. 5 of the Limitation Act, Order XXII Rule 9 and Order XXII Rule 4 of CPC respectively, and those applications were pending before the trial Court and when the matter was posted for final hearing, the applications in I.A.No.6 came to be filed under Order XXII Rule 9 of CPC and I.A.No.7 under Sec. 5 of Limitation Act seeking similar prayer. The appellate Court, solely on the ground of limitation, dismissed I.A.No.7 and consequently held that I.A.No.6 does not survive for consideration in view of dismissal of I.A.No.7.

(3.) It is submitted that though there is some lapse on the part of the petitioners-plaintiffs in filing the applications within time, the appellate Court without considering the earlier applications filed by the petitioners and keeping those applications pending, proceeded to reject I.A.No.7 on hyper technical ground that no sufficient cause is shown in the affidavit. It is further submitted that the petitioners are the sisters of deceased Gowramma and if the appeal is allowed by arraying the legal representatives of defendant No.1 on record, no prejudice would cause to the legal representatives of defendant No.1 and they also would get their share in the suit schedule property. Hence, he seeks to set aside the impugned order by allowing the pending applications by permitting the legal representatives of deceased defendant No.1 to be brought on record in the pending appeal.