Hari Mohan Sharma vs Goverdhan Dutta And 4 Others
2021 Latest Caselaw 11438 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Reserved On : 22.11.2021
 
Delivered On : 06.12.2021
 
Court No. - 9
 

 
Case :- MATTERS UNDER ARTICLE 227 No. - 3015 of 2018
 

 
Petitioner :- Hari Mohan Sharma
 
Respondent :- Goverdhan Dutta And 4 Others
 
Counsel for Petitioner :- Anshul Kumar Singhal
 

 
Hon'ble Ajit Kumar,J.

1. Heard Shri Anshul Kumar Singhal, learned counsel for the petitioner and Shri Shyam Sunder Sharma, learned counsel for the respondents.

2. By means of this petition under Article 227 of the Constitution, the petitioner seeks to set aside the order dated 13.01.2015 passed by the Additional Civil Judge (Senior Division), Mathura in Original Suit No. 173 of 1982 and the connected Original Suit No. 254 of 1982 and also the order dated 13.02.2018 passed by the Additional District Judge, Court No. 8, Mathura in Civil Revision No. 64 of 2015.

3. The controversy involved in the present case arises for the two sets of legal heirs of late Goverdhan Dutt claiming to substitute Goverdhan Dutt in the connected suit proceedings. While Original Suit No. 173 of 1982 was instituted by the present petitioner seeking permanent prohibitory injunction against Goverdhan Dutt, Goverdhan Dutt also instituted a suit being Original Suit No. 254 of 1982 against the present petitioner seeking the relief in the nature of mandatory injunction and a consequential relief for restoration of possession of the suit land. Both the above suits came to be connected for the purposes of adjudication and disposal.

4. It is during the pendency of above suit proceedings, Goverdhan Dutt died. While Smt. Babli @ Chitra, daughter of one Jai Prakash Hada was claimed by the present petitioner, to be legal heir of late Goverdhan Dutt as grand daughter of late Goverdhan Dutt, in the suit filed by late Goverdhan Dutt being Original Suit No. 254 of 1982, the respondent nos. 2, 3 & 4 herein in this petition, filed an application seeking substitution/ impleadment to continue the suit proceedings as heirs and legal representatives of late Goverdhan Dutt. The objections were filed by the l respective parties qua two substitution applications.

5. The trial court in its judgment found it to be appropriate to allow both the rival parties to be parties in the suits as legal representatives of Goverdhan Dutt for the purposes of continuation of suit proceedings instead of adjudicating the issue of right of the parties to be substituted exclusively as heir/legal representative of late Goverdhan Dutt. Against the said order, revision was filed by the present petitioner which also came to be dismissed.

6. Learned counsel for the petitioner submitted that it was a duty cast upon the court to determine the issue of legal right to be heir/ legal representative of a party in the event of dispute being raised, under Order XXII Rule 5 of Code of Civil Procedure, 1908 (in short ''CPC') as it provides for the same. Learned counsel for the petitioner argued that determination of rights of a person to be heir/ legal representative of a deceased party in the suit, can be very well determined by permitting the parties to lead evidence in support thereof. He submits that the proviso to Rule 5 of Order XXII CPC is clearly of indicative of the intendment of legislature that the court concerned should decide the controversy of heir-ship, if any raised and, therefore, according to him the trial court was not justified in allowing the substitution application of both the claimants to substitute the deceased defendant in one suit and as plaintiff in another connected suit. According to learned counsel for the petitioner, the legal principles had been wrongly interpreted by the trial court. He also submitted that the court revising the order of trial court, simply confirmed the order without recording any independent finding on the question as to legal representative, as mandated Order XXII Rule 5 CPC.

7. Per contra, it has been submitted by learned counsel for the respondents that the legal position was that any application in suit or appeal by a party to substitute the deceased in a suit or appeal for that matter, was only for the purposes of adjudication of the case, meaning thereby, the suit proceedings were to be brought to their logical end and were not to be lingered on for technical pleas as to who would be the right person to substitute the deceased party. He submited that the rival parties claiming to be rightful heirs/ legal representatives could draw any declaratory decree qua proprietary right in the suit property in appropriate proceedings.

8. Having heard learned counsel for the respective parties and their respective arguments raised across the bar and having gone through the pleadings so raised, I find that the discretion exercised by the trial court confirmed in revision, has to be looked into, whether right or wrong, in the backdrop of the plaint case of the respective parties and the consequential proceedings drawn.

9. I find that petitioner was seeking injunction in the nature of permanent prohibitory injunction, whereas, late Goverdhan Dutt had instituted the suit seeking mandatory injunction and recovery of possession. Thus the suits that have been connected, the pleas taken were for injunction and mandatory injunction respectively.

10. The petitioner before this Court has filed a suit in the nature of permanent prohibitory injunction. If he wants to injunct a party, it would be his choice to implead that party, if in his choice Chitra Jaiswal is the only heir of late Goverdhan Dutt and she should be injuncted, it does not bind the rival heirs if they are not impleaded or substituted. Similarly if injunction is also granted against further three persons who are claiming to be heirs of late Goverdhan Dutt, it does not in any manner affects the right of present petitioner rather helps him out in getting the decree of injunction purposefully executable and therefore, for the purpose of continuation of O.S. No. 173 of 1982 if both the rival legal representatives of late Goverdhan Dutt are impleaded, no prejudice would be caused to the present petitioner.

11. Again in the suit filed by Goverdhan Dutt, it could not be a concern of the petitioner as to who steps into the shows of plaintiff of that case because the petitioner is the defendant and a suit of mandatory injunction would be decreed only in the event petitioner fails to prove his case for prohibitory injunction as owner in possession of the suit land. As far as the proprietary right in respect of a particular property left by Goverdhan Dutt is concerned that would be determinable in the event petitioner loses his suit and then the lis could be between the two rival sets claiming to be the heir of late Goverdhan Dutt in appropriate suit proceedings.

12. Argument that has been very vehemently pressed before me by learned council for the petitioner was that adjudication as provided rule 5 of order XXII CPC was a must to finally adjudicate the heir-ship.

13. In my view the legal position qua heir-ship to the estate of a deceased is quite different from the right to consider for continuation of a suit proceeding as legal heir of a deceased party in such out. The issue is no more res integra but I find it to be a fit case to refresh the already settled legal position.

14. For appreciating the legal principle the relevant provision of order XXII of CPC is reproduced hereunder in its entirety:

"ORDER XXII

DEATH, MARRIAGE AND INSOLVENCY OF PARTIES

1. No abatement by party's death, if right to sue survives.--The death of a plaintiff or defendant shall not cause the suit to abate if the right to sue survives

"or to proceedings in the original Court taken after the passing of the preliminary decree where a final decree also requires to be passed having regard to the nature of the suit."

(Allahabad amendment)

2. Procedure where one of several plaintiffs or defendants dies and right to sue survives--Where there are more plaintiffs or defendants than one, and any of them dies, and where the right to sue survives to the surviving plaintiff or plaintiffs alone, or against the surviving defendant or defendants alone, the Court shall cause an entry to the effect to be made on the record, and the suit shall proceed at the instance of the surviving plaintiff or plaintiffs, or against the surviving defendant or defendants.

3. Procedure in case of death of one of several plaintiff or of sole plaintiff.-- (1) Where one of two or more plaintiffs dies and the right to sue does not survive to the surviving plaintiff or plaintiffs alone, or a sole plaintiff or sole surviving plaintiff dies and the right to the sue survives, the Court, on an application made in that behalf, shall cause the legal representative, of the deceased plaintiff to be made a party and shall proceed with the suit.

(2) Where within the time limited by law no application is made under sub-rule (1), the suit shall abate so far as the deceased plaintiff is concerned, and, on the application of the defendant, the Court may award to him the costs which he may have incurred in defending the suit, to be recovered from the estate of the deceased plaintiff.

4. Procedure in case of death of one of several defendants or of sole defendant.-- (1) Where one of two or more defendants dies and the right to sue does not survive against the surviving defendant or defendants alone, or a sole defendant or sole surviving defendant dies and the right to sue survives the Court, on an application made in that behalf, shall cause the legal representative of the deceased defendant to be made a part and shall proceed with the suit.

(2) Any person so made a party may make any defence appropriate to his character as legal representative of the deceased defendant.

(3) Where within the time limited by law no application is made under sub-rule (1), the suit shall abate as against the deceased defendant.

[(4) The Court whenever it thinks fit, may exempt the plaintiff from the necessity of substituting the legal representatives of. any such defendant who has failed to file a written statement or who, having filed it, has failed to appear and contest the suit at the hearing; and judgment may. in such case, be pronounced against the said defendant notwithstanding the death of such defendant and shall have the same force and effect as if it has been pronounced before death took place.

(5) Where--

(a) the plaintiff was ignorant of the death of a defendant, and could not, for that reason, make an application for the substitution of the legal representative of the defendant under this rule within the period specified in the Limitation Act, 1963 (36 of 1963), and the suit has, in consequence, abated, and

(b) the plaintiff applies after the expiry of the period specified therefore in the Limitation Act, 1963 (36 of 1963), for setting aside the abatement and also for the admission of that application under section 5 of that Act on the ground that he had, by reason of such ignorance, sufficient cause for not making the application within the period specified in the said Act, the Court shall, in considering the application under the said section 5, have due regard to the fact of such ignorance, if proved.]

4-A. Procedure where there is no legal representative.- (1) If, in any suit, it shall appear to the Court that any party who has died during the pendency of the suit has no legal representative, the Court may, on the application of any party to the suit, proceed in the absence of a person representing the estate of the deceased person, or may by order appoint the Administrator-General, or an officer of the Court or such other person as it thinks fit to represent the estate of the deceased person for the purpose of the suit; and any judgment or order subsequently given or made in the suit shall bind the estate of the deceased person to the same extent as he would have been bound if a personal representative of the deceased person had been a party to the suit.

(2) Before making an order under this rule, the Court-

(a) may require notice of the application for the order to be given to such (if any) of the persons having an interest in the estate of the deceased person as it thinks fit; and

(b) shall ascertain that the person proposed to be appointed to represent the estate of the deceased person is willing to be so appointed and has no interest adverse to that of the deceased person.

5. Determination of question as to legal representative.- Where a question arises as to whether any person is or is not the legal representative of a deceased plaintiff or a deceased defendant, such question shall be determined by the Court:

[Provided that where such question arises before an Appellate Court, that Court may, before determining the question, direct any sob-ordinate Court to try the question and to return the records together with evidence, if any, recorded at such trial, its findings and reasons therefore, and the Appellate Court may take the same into consideration in determining the question.]

(Emphasis added)

15. Upon bare reading of the rule 1 it is clear that the suit would not abate automatically in the event of a death of either of the parties thereto and so also any of the proceedings undertaken by the original court as a consequence of preliminary decree where final decree is must if rights to sue survives.

16. Rule 2 provides for a procedure where one of the plaintiffs or defendants dies and right to sue survives. The rule provides that in the event of more than one plaintiffs or the defendants, as the case may be, and right to sue survives with the other remaining parties, the court shall make an entry accordingly and proceed with the suit.

17. Rule 3 provides for substitution in case of the death of one of the several plaintiffs or sole plaintiff. The rule provides for the court to cause legal representative of the deceased plaintiff to be made as a party and shall proceed with the suit in the event right to sue survives. Sub rule (2) of Rule 3 provides for abatement as against the deceased plaintiff if no application for substitution is filed within prescribed period of limitation and the court can also award cost to the defendants to be recovered from the estate of deceased plaintiff.

18. Similar is the provision contained under rule 4(1) and the court shall proceed with the suit. However, sub rule (2) gives an opportunity to a legal representative to make a defence also appropriate to his character as such. Sub rule (3) provides for abatement against the deceased defendant as well and sub rule 2 of Rule 3 is that no application is necessarily required for abatement in the event of death of the defendant. So the abatement is by fiction of law.

19. Sub rule (4) further vests right with the plaintiff not to substitute the legal representatives of a defendant who failed to submit any written statement or even if submitted, he failed to appear and contest the suit at the hearing and in such event even the judgment may be pronounced against the deceased defendant and the same will be having the same force as if the defendant had not died. Sub rule (5)(a) prescribes the limitation period for the plaintiff to file substitution application, whereas, sub rule 5(b) provides for setting aside the abatement and admission of belated substitution application with the aid of section 5 of Indian Limitation Act, 1963.

20. Rule 4(A) provides an opportunity for the court to appoint Administrator General or any officer of the court or such other person as would be just and proper in its discretion, to represent the estate of deceased person who was party to the suit and is not survived by any heir or legal representative for the purpose of suit only and the judgment of the suit shall bind the estate of such deceased person. Sub rule (2) of rule 4(A) shall ensure that a notice given to a person to represent the estate of deceased person, if willing to be so appointed and has no interest adverse to that of the deceased.

21. Rule 5 of Order XXII provides for determination of question as to whether a person is or is not entitled to be held legal representative of deceased plaintiff or deceased defendant. Proviso to rule 5 provides that in the event such a situation arises in an appeal, the court before determining that question, may direct the subordinate court to try such question and return the record with evidence determining right of a person to be legal representative and then the appellate court may take the same into consideration in determining the question.

22. The provisions as contained in different rules and their respective sub rules of order XXII indicate four undisputed principles on the issue of substitution of a deceased plaintiff or defendant:

(a). If the right to sue survives then for the purposes of orderly conduct of the suit proceedings, the court will cause legal representative to substitute the original party on either side as the case may be, as there should be no abatement in such circumstances;

(b). In case of death of plaintiff/ plaintiffs or defendant/ defendants and in the event substitution is not filed within the limitation prescribed under the Indian Limitation Act, 1963, the abatement of suit proceedings as against such deceased party is automatic and therefore, if the substitution is filed belatedly, the plaintiff shall have to apply for setting aside the abatement as well;

(c). The parties to the suit have a right to apply for appointment of Administrator General or any other officer of the court or any such other person to represent the estate of the deceased if the cause is still surviving, to be appointed in the discretion of the court concerned; and

(d). when a question arises as to who can be held to be legal representatives of a deceased party to the suit, then such question shall be determined by the court of first instance. In case of appeal the appellate court though shall have to determine the question itself but may ask for the trial court to return findings after evaluation of evidence qua right of the party to be impleaded as legal representative of the deceased party in the suit.

23. So the analogy would be that suit should not abate, if the right to sue survives and the parties to the suit even if die, the court shall cause their representatives to be recorded and shall proceed to conclude the suit proceedings and in the event of dispute it is also determinable as to right to be recorded as a legal representative.

24. This above analogy leads to only one conclusion that the legislature intended for a suit once instituted to be brought to its logical end and for the technicalities of the death of either of the parties in the event right to sue survives, the legal representative be brought on record so as to achieve the end result i.e. conclusion of the suit proceedings with the adjudication of lis. This means that even a determination under rule 5 is aimed at achieving the above end result and not beyond that.

25. Thus, while a legal representative to be brought on record to protect the estate of deceased it is only limited to the right to that extent and continuation of suit proceedings. Whether a person gets an enforceable right in the estate of a deceased, meaning thereby the proprietary rights, that being not an issue in the suit the question would be how far such a decision would if adjudicated, will have binding force in case if suit is brought claiming right to the estate of the deceased. Right to property is between plaintiff and the defendant only and right to sue being limited to that extent and if any proprietary right is claimed by legal representatives, in my considered view, such a party will have to seek a remedy otherwise available in common law and even if there is adjudication under rule 5, it will not operate as res judicata in such subsequent suit.

26. In my above view, I find support from the judgment in the case of Mohinder Kaur & Anr v. Piara Singh & Ors of Punjab and Haryana Court in which an argument was advanced by learned Advocate that the view taken by the Lahore High Court in the case if Chiragh Din v. Dhlawar Khan AIR 1934 Lah 465; Mahomed Khan v. Jan Mohammad, AIR 1939 Lah 580 and Daular Ram v. Mt. Meero, AIR 1941 Lah 142 that the decision under Order XXII Rule 5 of CPC would not operate as res-judicata in a subsequent suit for succession or heirship of the deceased party, was no more a good law and in support of his argument, learned Advocate in that case had relied upon a judgment of Allahabad High Court in Raj Bahadur v. Narayan Prasad, AIR 1926 All 349 and one Jai Narain v. Ram Deo AIR 1933 Oudh 207. The High Court rejected the argument and held that the inquiry under rule 5 of Order XXII to be only summary in nature and thus vide para 9 held thus:

"9. We are, therefore, of the opinion that in essence a decision under Order 22, Rule 5, Civil Procedure Code, is only directed to answer an orderly conduct of the proceedings with a view to avoid the delay in the final decision of the suit till the persons claiming to be the representatives of the deceased party get the question of succession settled through a different suit and such a decision does not put an end to the litigation in that regard. It also does not determine any of the issues in controversy in the suit. Besides this it is obvious that such a proceeding is of a very summary nature against the result of which no appeal is provided for. The grant of an opportunity to lead some sort of evidence in support of the claim of being a legal representative of the deceased party would not in any manner change the nature of the proceeding, In the instant case the brevity of the order (reproduced above) with which the report submitted by the trial Court after enquiry submitted by the trial Court after enquiry into the matter was accepted, is a clear pointer to the fact that the proceedings resorted to were treated to be of a very summary nature. It is thus manifest that the Civil Procedure Code proceeds upon the view of not imparting any finality to the determination of the question of succession r heirship of the deceased party."

27. This above view of the Punjab and Haryana High Court and the subsequent decision of the Allahabad High Court overruling Raj Narayan (supra) finds favour in the judgment of Supreme Court in Dashrath Rao Kate v. Brij Mohan Srivastava, (2010) 1 SCC 277 and vide paragraph nos. 16 and 17, the court held thus:

"16. As a legal position, it cannot be disputed that normally, an enquiry under Order 22 Rule 5, CPC is of a summary nature and findings therein cannot amount to res judicata, however, that legal position is true only in respect of those parties, who set up a rival claim against the legatee. For example, here, there were two other persons, they being Ramesh and Arun Kate, who were joined in the Civil Revision as the legal representatives of Sukhiabai. The finding on the Will in the order dated 9.9.1997 passed by the Trial Court could not become final as against them or for that matter, anybody else, claiming a rival title to the property, vis-`- vis, the appellant herein, and, therefore, to that extent, the observations of the High Court are correct. However, it could not be expected that when the question regarding the Will was gone into in a detailed enquiry, where the evidence was recorded not only of the appellant, but also of the attesting witness of the Will and where these witnesses were thoroughly cross-examined and where the defendant also examined himself and tried to prove that the Will was a false document and it was held that he had utterly failed in proving that the document was false, particularly because the document was fully proved by the appellant and his attesting witness, it would be futile to expect the witness to lead that evidence again in the main suit. It was at the instance of the High Court in the revisional jurisdiction that the direction was given that the Trial Court should first decide as to whether who could be the legal representative of Sukhiabai and after complete enquiry, the Trial Court held the Will to be proved. The Will was not only attacked by the appellant on its proof, but also on merits, inasmuch as the respondent/defendant went on to contend before the Trial Court during that enquiry that the Will was unnatural, unfair and was executed in doubtful circumstances. The respondent/defendant had also relied on the reported decision of this Court in Girja Dutt Singh Vs. Gangotri Datt Singh [AIR 1955 SC 346]. The Trial Court, however, rejected this contention. On the other hand, the Trial Court found on merits that the appellant was living with Sukhiabai and Sukhiabai had adopted him orally.

17. Evidence of Ramesh Kate was also referred to, who asserted about this fact. Reference was also made to the evidence of Sukihabai herself in the Rent Control Case No. 14/90-91 that she had adopted Dashrath Rao (appellant herein) and that Dashrath Rao lived with her. Clear cut findings were given by the High Court in these proceedings that from the evidence of Prabhakar Rao (PW-2), the attesting witness, it was clear that Sukhiabai had signed in his presence and he had also signed in present of Sukhiabai and had also seen the other attesting witness signing the Will and attesting the same. Not only this, but the Trial Court also wrote a finding that the objection raised by the defendant (respondent herein) that Sukhiabai was not in a position to understand the Will on account of her poor physical condition, was also rejected by the Trial Court. It was also noted that the Will was executed six years prior to her death and as such, there was no question of Sukhiabai being suffered with any mental or physical disability for executing the Will. Therefore, it is on this basis that the Will was held to be proved. Once this was the position and in the same suit, the further evidence was led, there was no point on the part of the appellant/plaintiff to repeat all this evidence all over again. We have closely seen the relied upon ruling of the Himachal Pradesh High Court in Suraj Mani & Anr. Vs. Kishori Lal (cited supra). The ruling undoubtedly correctly holds that the finding in an enquiry under Order 22 Rule 5 cannot operate as res judicata, provided the very question needs to be decided. The factual situation, however, differs substantially. The case before the Himachal Pradesh High Court only pertained to the correctness of the order passed in the enquiry under Order 22 Rule 5, CPC. That was not a case where the question, as in the present case, fell for consideration. In fact, the Himachal Pradesh High Court also observed and, in our view, correctly, that it was still open to the petitioner (therein) during the trial of the suit to establish that the Will was competent and confered no right, title or interest on the respondent and, therefore, the respondent was not entitled to any relief in the suit. Unfortunately, on evidence in this case, the respondent/defendant did not do anything and did not even challenge the evidence of the appellant that he had become owner of the Will. Merely because the evidence of respondent/defendant and Prabhakar Rao (PW- 2) was not repeated all over again, it cannot be held that the appellant/plaintiff could be non-suited on this ground."

28. In view of the above pronouncement of law on the subject, since no proprietary right in the estate of the deceased would be going to be determined under Order XXII rule 5, whether the application for substitution of respondent no. 1 is allowed or respondent nos. 2, 3 & 4 are allowed in respect of the deceased Goverdhan Dutt, it will hardly affect the merit of the suit and particularly claim of petitioner in his suit for perpetual injunction.

29. In view of the above, I do not find any fault with the order of trial court affirmed in revision that both the parties be impleaded for the purposes of continuation of the suit proceedings so as to bring them to their logical end. Even in the absence of legal representatives being set up, the court could have appointed in its discretion Administrator General or any other person to represent the estate of late Goverdhan Dutt who is defendant in the suit of the present petitioner as the very object of provision contained in Order XXII is to continue orderly the suit proceedings and to bring the suit proceedings to their logical end.

30. Hence, no interference is warranted in exercise of power under Article 227 of the Constitution of India with the orders impugned.

31. Petition lacks merit and is accordingly rejected with no order as to cost.

Order Date :- 6.12.2021/IrfanUddin