KIFAYATH ALI KHAN Vs. K S KRISHNA SHARMA

JUDGEMENT

(1.) This appeal has been directed against the order of the learned Single Judge setting aside the judgment and decree in O.S.No.296 of 1982 on the file of the learned Additional Chief Judge, City Civil Court, Hyderabad and remanding the matter to the trial Court with directions to allow the present Respondent No.8 to come on record, permitting her to file written statement, frame an additional issue and directing the trial Court to proceed with and dispose of the entire suit on merits afresh. The order is purported to be passed under Order VIII Rule 10 C.P.C.

(2.) The plaintiff-1st respondent (sic. appellant) brought the suit claiming certain reliefs concerning the alleged misdeeds and frauds committed by one Late Mr. Seshachalapathi impleading his son Krishna Sarma and two daughters - Indira and Hymavathi as the Defendants. Later on, the widow of Seshachalapathi was impleaded as the Defendant No.4. Thereafter, I.A.No.189 of 1983 was filed by the plaintiff on 13-4-1983 seeking to implead defendants 5 to 7 viz., the other sons and daughters of late Seshachalapathi. In the petition, a prayer was also made to implead another daughter Smt. A. Annapurna, the present Respondent No.8 as the defendant. The petition was allowed. But, while the others were impleaded as defendants, Respondent No.8 was not so impleaded as no batta was paid for her. As such, the petition to implead was dismissed so far as she was concerned. The suit having been decreed, Defendant Nos.1, 2 and 4 viz., the son, one daughter (Indira) and Mrs. Seshchalapathi, Defendant No.4 preferred the appeal C.C.C.A.No.94 of 1987. During the pendency of the appeal, Appellant No.3 (Defendant No.4) died on 4-12-1993. An application registered as C.M.P.No.18720 of 1995 was filed to bring her legal representatives on record. In that application, a prayer was made to bring Smt. A. Annapurna, the present Respondent No.8 on record as the legal heir of defendant No.4 and also to declare the existing Respondent Nos.2, 3, 4, 5 and 6 as the legal heirs of Appellant No.3. Subsequently C.M.P. Nos.1962 and 1963 of 1996 were filed to condone the delay in filing the petition for setting aside the abatement and to set aside the abatement on 21-12-1995. Orders were passed on 25-3-1996 by the learned Single Judge allowing C.M.P.No.18720 of 1995 and directing the appellants to take out notice on the legal representative i.e. present Respondent No.8 as she is their own sister. Thus, Respondent No.8 was permitted to be impleaded as a party to the appeal, which order was carried out as appears from the endorsement on the memorandum of the appeal in A.S.No.94 of 1987 (C.C.CA.No.94 of 1987). In the same order a direction was also there that unless the appellants file proof of service of notice on the newly added legal representative within thirty days from the date of the order, the L.R. petition shall stand dismissed which obviously meant that the petition to implead Smt. A. Annapurna would stand dismissed. Subsequently, a note was put up by the Assistant Registrar that the condition of filing proof of service had not been complied with and hence submitted for orders as to whether the default clause is to be worked out. Under the orders of the Deputy Registrar on 18-2-1997, the default clause was Vorked out and as such the petition stood dismissed. Consequently, the inpleading of respondent A. Annapurna as legal representative was not allowed. Orders were passed on 25-3-1996 by the learned Single Judge dismissing the C.M.P.No.1962 and 1963 of 1996 saying that the two petitions were not necessary as respondents 3, 4 and Appellant No.1 who are the sons of the deceased (Appellant No.3) were representing her estate.

(3.) It is submitted by the learned Counsel for the appellant that the order was factually incorrect as apart from the legal representatives of Appellant No.3 who were already on record, the present Respondent No.8 was not on record by then and the application to implead her as a party to the appeal had been only allowed on that day conditionally. The very application to inplead her had been made in the year 1995 and as such condoning the delay and setting aside the abatement petitions were necessary and had to be disposed of. We find substance in the submission.