MANTHENA KRISHNAM RAJU Vs. DADAL RAMANAIAH

JUDGEMENT

(1.) The defendants in O.S. No. 112 of 1991 on the file of learned Principal Subordinate Judge, Kakinada, filed this revision petition aggrieved by the order and decree dated 2-9-1996 made in I.A. No.1285 of 1991 in O.S. No.112 of 1991. The facts, which are not in dispute, are that one late Manthena Krishnam Raju filed the above suit through next friend of D. Subhash on 3-4-1991 for cancellation of registered sale deeds executed by the plaintiffs in favour of the defendants and delivery of possession of the schedule property with profits, along with an application under Order XXXII Rule 15 C.P.C. to permit D. Subhash to file the suit on behalf of the plaintiff as his next friend and also power of attorney holder. The plaintiff expired on 5-5-1991. The Court on 28-6-1991 ordered notice to the respondents in I.A. No.1285 of 1991 and registered the suit on the same date. The revision petitioners-defendants filed the counter in the above interlocutory application contesting that the suit filed by the power of attorney, without any power subsisting on the date of filing the suit, cannot file an interlocutory application and also cannot institute a suit. The said power of attorney was cancelled even prior to the filing of the suit and the allegation that the plaintiff was very old, senile and mentally infirm and was having the habit of over drinking are all false, and that his health was in very good condition and the petition filed itself is not maintainable etc. Pending consideration of the above application, the legal representatives of the plaintiff were also brought on record on 15-4-1996 and in the present application only on 9-8-1996. The lower Court closed the petition stating that even though the Court ordered notice in the application to the respondents on 28-6-1991, on which date the suit was also numbered, without passing any speaking order, granting permission to D. Subash to represent the plaintiff in the suit proceedings and it has to be taken that such permission was granted exparte. Apart from the same, the legal representatives of the plaintiff were brought on record on 15-4-1996 and in the interlocutory application only on 9-8-1996 and in the said circumstances, there is no point in further pursuing the present petition proceedings, especially when the evidence on record, which is adduced, in the absence of the respondents inspite of the death of the plaintiff, even prior to the respondents put in their appearance cannot be considered and a fresh enquiry is to be conducted eschewing the evidence, as no opportunity for them to participate in the enquiry was given and directed the respondents to file the written statement in the proceedings.

(2.) Questioning the same, the revision petition is filed.

(3.) Learned Counsel for the revision petitioners strenuously urged that the very approach of the Court below is erroneous and the Court has no jurisdiction to proceed with the suit. Once the plaintiff expired even prior to numbering of the suit, the principles enunciated under Order XXXII Rule 15 CPC has no application to the facts of the case. He contended that when the Court issued notices in interlocutory application, on the said date, the plaintiff was no more and the plaintiff (sic. Court) cannot make any enquiry as contemplated under Order XXXII Rule 15 CPC. The only option left to the Court is to reject the plaint as enquiry is not possible to decide whether the plaintiff on the date of filing of the suit is unsound mind or not. He also contended that the date on which permission granted, the plaintiff was no more. Therefore, legal representatives of the plaintiff cannot continue the said suit and the plaint is liable to be rejected on the date when the Court ordered notices in the interlocutory application. By mere impleading the legal representatives of the deceased plaintiff, the Court will not get the jurisdiction to proceed with the suit. Therefore, he prayed to reject the plaint as not maintainable. In support of his contentions, he relied on the following judgments: (1) Anasuyamma vs. Subbareddi; (2) S. Krishna Murthy vs. S. Sasila; (3) Somnath vs. Tipanna.