At, High Court of Karnataka Circuit Bench At Dharwad
By, THE HONOURABLE MR. JUSTICE S.R. KRISHNA KUMAR
For the Petitioner: Shivaraj P. Mudhol, Advocate. For the Respondents: ------------
(This writ petition is filed under Articles 226 and 227 of the Constitution of India praying to quash the order dated 03.02.2015 on I.A. No. III, IV and V in Civil Misc. No. 17/2009 passed by the Fast Track Court, Jamkhandi vide Annexure-A & Etc.)
This writ petition is directed against the impugned order dated 03.02.2015 passed on I.A. Nos. 3, 4 and 5 in Civil Misc. No. 17/2009 passed by the learned Presiding Officer, Fast Track Court, Jamakhandi (for short ‘the trial Court’) whereby the said applications filed by the petitioner were rejected.
2. Heard learned counsel for the petitioner and perused the material on record including the impugned order.
3. The respondents having been served with notice of this petition have chosen to remain unrepresented and have not contested the petition.
4. The material on record including the impugned order will indicate that one Rasiklal Vithalchand Gujar instituted a suit in O.S. No. 72/1989 for declaration and possession in respect of the suit schedule immovable property against the respondents-defendants. The said suit having been dismissed by judgment and decree dated 29.07.2005, the said Rasiklal Vithalchand Gujar preferred appeal in R.A. No. 151/2005 which was dismissed for non prosecution on 24.07.2009. Aggrieved by the same, the said Rasiklal Vithalchand Gujar filed Civil Miscellaneous No. 17/2009 seeking restoration of the said appeal. During the pendency of the said proceedings, the said Rasiklal Vithalchand Gujar having died without leaving behind wife or children, the petitioner filed the instant application I.A. Nos. 2, 3 and 4 for permission to come on record as his heir and legal representative along with necessary application for condonation of delay and setting aside abatement.
5. In the said application the petitioner herein specifically contended that he was a legatee under a Will dated 03.01.2012 executed by the said Rasiklal Vithalchand Gujar and consequently it was necessary that the petitioner is brought on record as the legal representative of the deceased Rasiklal Vithalchand Gujar to represent his estate and to continue to prosecute the miscellaneous proceedings as his heir and legal representative. The said applications having been opposed by the respondents, the first appellate Court proceeded to reject the said application, aggrieved by which the petitioner is before this Court by way of the present writ petition.
6. A perusal of the impugned order will clearly indicate that the first appellate Court has dismissed the said application filed by the petitioner by coming to the conclusion that the will said to have been executed by Rasiklal in favour of the petitioner was not a valid document. In this context, it is relevant to state that for the purpose of considering an application to come on record as legal representative of the children of Rasiklal Vithalchand Gujar on the basis of the will, it was not open for the first appellate Court to render a finding with regard to the execution or genuineness or validity of the will; on the other hand, petitioner was entitled to come on record as the legal representative of the deceased Rasiklal Vithalchand Gujar for the limited purpose of prosecuting the appeal by leaving open the question of execution or genuineness or validity of the will to be decided by the first appellate Court at the time of final disposal of the appeal.
7. Under these circumstances, I am of the view that the impugned order passed by the first appellate Court rejecting I.A.Nos. 3 to 5 deserve to be set aside and the said applications filed by the petitioner deserve to be allowed.
i) Writ Petition is allowed;
ii) Impugned order on I.A. Nos. 3 to 5 in Civil Misc. No. 17/2009 on the file of the learned First appellate Court is hereby allowed;
iii) Petitioner is permitted to come
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on record in Civil Misc. No. 17/2009 as heir and legal representative of the deceased Rasiklal Vithalchand Gujar for the limited purpose of prosecuting the said case; iv) The issue with regard to execution, genuineness and validity of the will said to have been executed by Rasiklal Vithalchand Gujar in favour of the petitioner is kept open to be decided by the first appellate Court at the time of final disposal of the appeal.