THIMMAIAH N., T. PRASAD AND SMT. PADMMA Vs. NIL

JUDGEMENT

(1.) THIS appeal by the plaintiffs No. 1 and 2 in O.S. No. 1222/2011 on the file of I -Additional City Civil and Sessions Judge, Bangalore is directed against the order dated 04.06.2011 dismissing the said suit as not maintainable and rejecting the plaint under Order 7, Rule 11 of CPC as not maintainable. The appellant No. 1 claiming to be the husband and appellants No. 2 and 3 claiming to be the son and daughter of Jayamma filed the aforesaid suit seeking declaration that Jayamma is not heard of from 17.06.2001 and therefore she should be declared to have died. It was further averred in the plaint that the other sisters of Jayamma had filed a suit in O.S. No. 8091/1992 against her brothers, wherein the said Jayamma had been arrayed as defendant No. 5 and the said suit came to be decreed which is questioned by the brothers in appeal before this Court in R.F.A. No. 577/2004.

(2.) ACCORDING to the plaintiffs, in order to claim the share of Jayamma in the property, a declaration that she is not heard for more than seven years from 17.06.2001 is required to be passed. In the plaint, it was not indicated against whom such a declaration is sought to be made. The Court heard the learned counsel for the plaintiffs with regard to the maintainability of the suit. After hearing the learned counsel, the Court below was of the opinion that the suit as brought is not maintainable, consequently rejected the plaint. Aggrieved by the said order, the plaintiffs/appellants are in appeal before this Court.

(3.) IT is submitted by the learned counsel for the appellants that in respect of the preliminary decree passed in O.S. No. 8091/1992 and affirmed by this Court in R.F.A. No. 577/2004, final decree proceedings is pending before the trial Court in FDP. No. 106/2012 to which Jayamma is arrayed as party -respondent No. 10. If a proceeding before the Civil Court is pending to which the person sought to be declared as not being heard for more than seven years is arrayed as a party -respondent, it is just and proper for the plaintiffs to approach that Court seeking an enquiry into that aspect of the matter and have a consequential declaration to that effect and to seek an order to bring the on record as legal representatives of Jayamma. When such proceedings are pending before the Court, the plaintiffs cannot have recourse to filing a civil suit without impleading anyone as the defendants for the relief of declaration.