Mona Rajesh Shah vs Gunvantiben Sakarchand Shah
2023 Latest Caselaw 5188 Guj

       C/SCA/8363/2014                               ORDER DATED: 05/07/2023




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 8363 of 2014

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                          MONA RAJESH SHAH
                                Versus
                GUNVANTIBEN SAKARCHAND SHAH & 6 other(s)
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Appearance:
JENIL M SHAH(7840) for the Petitioner(s) No. 1
DECEASED LITIGANT for the Respondent(s) No. 6
MR MEHUL H RATHOD(701) for the Respondent(s) No. 2,3.1,3.4,6.1,6.2,6.3
NOTICE SERVED for the Respondent(s) No. 1,3.2,3.3,3.5,4,5,7
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     CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA
                      Date : 05/07/2023
                       ORAL ORDER

1. This petition under Article 227 of the Constitution of India

assails a legality and correctness of the order dated

30.11.2013 passed below Exh.21 in Regular Civil Appeal

No.20 of 2008, by which the learned 6th Additional District

Judge, Bhuj-Kutch refused to join the petitioner as an heir

and legal representative of deceased - Maneklal Parsottam

Shah and further directed the Trial Court to determine a

question whether the present petitioner is legal

representative of the deceased defendant or not.

2. This Court has heard learned Senior Counsel Mr.Mehul

Shah assisted by learned counsel Mr.Zenil Shah and

learned counsel Mr.Mehul Rathod for the respective

C/SCA/8363/2014 ORDER DATED: 05/07/2023

parties.

3. Learned Senior Counsel Mr.Shah for the petitioner

submitted that a suit was filed by the respondents-

plaintiffs for redemption of mortgage and recovery of

possession from one Mr.Maneklal Shah - the original

defendant. The suit was decreed by the Court-below vide

its judgment and decree dated 15.02.2008, in Civil Suit

No.125 of 1978. The defendant - Maneklal Shah

challenged the decree by preferring an appeal before the

District Court at Bhuj being RCA No.20 of 2008. During

the pendency of the appeal, the sole appellant - original

defendant Maneklal Shah died on 14.02.2013. The

petitioner Mrs.Mona Rajesh Shah moved an application

Exh.21 to join her as an heir and legal representative of

deceased Maneklal Shah. The respondent-plaintiff also

filed an application before the learned Appellate Court, to

join the petitioner as legal heir and representative of the

sole defendant - appellant. The learned Trial Court, after

hearing the parties, instead of allowing the application for

joining the legal heirs, directed the subordinate Court to

determine the question whether the petitioner being

adopted daughter, is legal representative or not.

C/SCA/8363/2014 ORDER DATED: 05/07/2023

4. Being aggrieved with the impugned order, the petitioner

herein has come up before this Court invoking supervisory

jurisdiction under Article 227 of the Constitution of India.

5. Mr.Mehul Shah, learned Senior Counsel submitted that

the learned Appellate Court committed manifest error of

law while exercising its jurisdiction under Order 22 Rule 5

of the Code of Civil Procedure. It is in this context, it is

submitted that in the facts of present case, the petitioner is

only surviving legal heir of the deceased defendant and to

establish the same, there is sufficient evidence to show

that the petitioner is adopted daughter of the deceased and

she falls under the definition of legal representative as

defined under the Code. He further submitted that the

Appellate Court fails to appreciate the admitted facts that

the respondents themselves have preferred the application,

admitting therein the present petitioner to be an heir and

legal representative of Maneklal and seeking prayer to

substitute the petitioner in place of deceased Maneklal and

therefore, the question does not arise so as to warrant to

make inquiry under provisions of Order 22 Rule 5 of the

Code. Lastly, learned Senior Counsel submitted that in the

present case, there is no dispute raised by the other side

C/SCA/8363/2014 ORDER DATED: 05/07/2023

that the petitioner is not the legal representative of the

deceased and therefore, when there is no question or

dispute on this aspect, the provision of Order 22 Rule 5 of

the Code is not applicable and if it is so, then the

discretion exercised by the Appellate Court to refer the

matter to the Trial Court to decide whether the petitioner is

legal heirs or not, having been exercised against the

statutory provisions of law and the admitted facts of the

present case.

6. In view of the aforesaid contentions, learned Senior

Counsel submitted that the Appellate Court failed to

exercise its jurisdiction vested on it by law while passing

the order, which requires interference under the

supervisory jurisdiction of this Court and the same may be

quashed and set aside.

7. On the other hand, learned counsel Mr.Mehul Rathod

submitted that no error of law, much less an error

apparent on the face of the record is committed by the

Appellate Court while exercising its powers under Order 22

Rule 5 of the Code. He further submitted that the learned

Appellate Court, before joining the petitioner as a party

defendant, exercised its jurisdiction on the issue whether

C/SCA/8363/2014 ORDER DATED: 05/07/2023

the petitioner is legal representative of the deceased or not

and directed the subordinate Court to file its report. Thus,

there is no any manifest error on the part of the Appellate

Court and therefore, no reason or ground is made out for

interference by this Court under supervisory jurisdiction.

8. Having heard learned counsel for the respective parties

and on perusal of the impugned order, this Court is of the

view that the learned Appellate Court could not have

referred the matter to decide the question of legal

representative as provided under Order 22 Rule 5 of the

Code. A bare reading of Order 22 Rule 5 provides that

where a question arises as to whether any person is or his

not legal representative of the plaintiff, the Appellate Court

may direct subordinate Court to try the question and to

return the records together with the evidence, and its

findings on the issue so that the Appellate Court may take

into consideration in determining the issue of legal

representative. In the facts of present case, the

respondents themselves by preferring the application

prayed that the petitioner may be joined as an heir and

legal representative of the deceased. In such

circumstances, this Court is of the considered opinion that

C/SCA/8363/2014 ORDER DATED: 05/07/2023

when a question as to whether the petitioner is a legal

representative or not is not raised, the Appellate Court

could not have exercised its jurisdiction to refer the issue

of legal representative to the subordinate Court as provided

under the Order 22 Rule 5.

9. In view of the aforesaid, the Appellate Court committed an

error of law which is apparent on the face of the record,

and the Appellate Court exceeded its jurisdiction while

passing the order and the same is not sustainable in law.

Accordingly, present petition is allowed. Application

Exh.21 filed by the petitioner to join her as an heir and

legal representative of the deceased the appellant is hereby

allowed and she is directed to join as an appellant in the

appeal. The necessary amendment to be carried out before

the Appellate Court forthwith.

(ILESH J. VORA,J) Rakesh