Jharkhand High Court
David Kharia vs Bhaleria Keketta @ Bhaleria Tete ... on 27 July, 2021
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
C.M.P. No.30 of 2021
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1. David Kharia S/o late Imlus Kharia
2. Jonson Kharia S/o late Imlus Kharia
Residents of Village Saldega PS PO District Simdega.
... Petitioners
-versus-
1. Bhaleria Keketta @ Bhaleria Tete wife-Vinod Tete resident of Kachchu
Pani Bhelwa, PO Targa, PS Bansjor, Distt. Simdega.
2. Ignaisa Kerketta @ Ignasia Kujur, W/o Edward Kujur, R/o Karaiguda, PO
Kinkel, PS Kersai, District Simdega.
3. Julian Kerketta, resident of PO PS District Simdega
... ... ... ... ... Respondents
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CORAM : HON'BLE MR. JUSTICE ANANDA SEN
THROUGH VIDEO CONFERENCING
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For the Petitioner : Mr. Prem Mardi, Advocate
For the Respondents: None
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ORDER
RESERVED ON 16.07.2021 PRONOUNCED ON 27.07.2021
5/ 27.07.2021 This civil miscellaneous petition filed by the petitioner is registered
as C.M.P. No.30 of 2021. This is a petition filed under Section 151 of the Code
of Civil Procedure, read with Article 227 of the Constitution of India. In this
petition, the petitioner has challenged the order dated 19th November, 2019
passed by the Civil Judge Senior Division, Simdega in Misc. Civil Application
No.4 of 2019. The said order was passed by the Civil Judge Senior Division,
Simdega in terms of the proviso of Order XXII Rule 5 of the Code of Civil
Procedure.
QUESTION FORMULATED FOR DECISION OF THIS CMP
2. A preliminary question, which arises while deciding this civil
miscellaneous petition is, whether this petition is maintainable or not. To decide
this issue, the following questions needs to be framed: -
Whether an order passed by Civil Judge Senior Division in
terms of proviso of Order XXII Rule 5 of the Code of Civil
Procedure, can be challenged by filing a separate application
under Article 227 of the Constitution of India / Section 151 of
the Code of Civil Procedure, to be treated as a separate
litigation? If the answer is 'NO' then what is the remedy
available to the parties, who want to challenge the said
findings passed by the Judge, who exercised the power and
passed the order in terms of Order XXII Rule 5 of the Code of
Civil Procedure?
FACTS GIVING RISE TO THIS PETITION
3. To deal with the aforesaid issue, it is necessary to give brief facts of
this case, which gives rise to this litigation:-
(a) Petitioner, in this civil miscellaneous petition, were the
plaintiffs in Title Suit No.23 of 1979 / 3 of 1984. The said title suit
was dismissed by the Additional Sub Judge, Gumla vide judgment
dated 12.04.1985. Aggrieved by the said judgment, petitioners
herein preferred an appeal under Section 96 of the Code of Civil
Procedure before the First Appellate Court. The First Appellate
Court also dismissed the appeal. These petitioners, who were the
appellants before the First Appellate Court, challenged the said
judgment again by filing an appeal under Section 100 of the Code
of Civil Procedure. The said appeal (Second Appeal) filed under
Section 100 of the Code of Civil Procedure is still pending before
this Court and is numbered as Second Appeal No.542 of 2003.
(b) During pendency of the aforesaid second appeal, two
interlocutory applications have been filed. One interlocutory
application being I.A. No.2861 of 2017 was filed for substitution of
deceased-respondent No.1, namely, Most. Beronica Khariain, who
died on 13.01.2017. In the said interlolcutory application (I.A.
No.2861 of 2017), it was mentioned that the legal heir of the
deceased are Bhaleria Karketta @ Bhaleria Tete and Ignasia
Karketta @ Ignasia Kujur. The said application was filed under
Order XXII Rule 4 of the Code of Civil Procedure read with Rule 11
of the Code of Civil Procedure.
The second interlocutory application was filed, which is
numbered as I.A. No.9452 of 2017. This interlocutory application
was filed by one Jullian Kerkette, who claimed to be the son of the
deceased-respondent No.1, namely, Most. Beronica Khariain. He
wanted to intervene as a sole legal heir of deceased-respondent
No.1, claiming to be her only son.
(c) Considering these two interlocutory applications and the
claim of the rival parties, a Coordinate Bench of this Court held vide
order dated 27.02.2019 passed in S.A. No.542 of 2003, that there
is a dispute as to who are the legal heirs and successors of
deceased-respondent No.1. Considering the said dispute, the
Coordinate Bench felt necessary to invoke the provisions of Order
XXII Rule 5 of the Code of Civil Procedure and directed the Trial
Court to try the question and return the records along with the
evidence and the findings so that the dispute in relation to
substitution can be resolved.
(d) In compliance to the aforesaid order, the Civil Judge Senior
Division, Simdega tried the issue by taking evidence. The said
proceeding was numbered as Misc. Civil Application No.4 of 2019
before the Court below. After recording the evidence, the Civil
Judge, Senior Division, reached at a conclusion and passed an
order recording his finding vide order dated 19.11.2019.
(e) This order passed by the Civil Judge Senior Division,
Simdega in terms of Order XXII Rule 5 of the Code of Civil
Procedure has been challenged by the petitioners herein who are
the appellants in Second Appeal No.542 of 2003 by filing a
separate application under Section 151 of the Code of Civil
Procedure read with Article 227 of the Constitution of India, which
was registered as a separate case. This challenge is not made in
the second appeal, rather has been made by filing altogether a new
separate case.
(f) In this background, the question, which is formulated in
paragraph 2 of this order arose, which needs to be answered first.
SUBMISSIONS/ARGUMENTS ADVANCED
4. I have heard the learned counsel for the petitioners. Counsel
appearing on behalf of the petitioners submits that an order passed by the Civil
Judge Senior Division under Order XXII Rule 5 of the Code of Civil Procedure is
not appealable, so he cannot file any appeal against the said order. He submits
that since he is aggrieved by the findings of the Civil Judge Senior Division, the
only alternative he has is to file a separate case before the High Court under
Article 227 of the Constitution of India read with Section 151 of the Code of Civil
Procedure. He submits that the findings arrived at by the Civil Judge Senior
Division is absolutely perverse and against the record, thus, this separate
petition is maintainable. In support of his contention, he has relied upon a
judgment passed by the Allahabad High Court in the case of Ashwani Kumar
versus Smt. Vidya & Others reported in AIR 2007 (All.) 105.
ANALYSIS AND FINDINGS
5. Admittedly, Second Appeal No.542 of 2003 is pending before this
Court. It is an admitted case that a substitution petition was filed wherein it was
found by this Court that there is a dispute as to who is the legal heir/
representative of the deceased-respondent No.1. Order XXII of the Code of
Civil Procedure deals with the situation where death and insolvency of parties
take place. Rule 1 of Order XXII of the Code of Civil Procedure provides that
there will be no abatement on a party's death if the right to sue survives. Rule 2
of Order XXII of the Code of Civil Procedure provides the procedure where one
of the several plaintiffs or defendants dies and the right to sue survives. Rule 3
of Order XXII of the Code of Civil Procedure provides the procedure in case of
death of one of several plaintiffs or defendants or of sole plaintiff. As one of the
respondents died during pendency of the second appeal, I.A. No.2861 of 2017
(as mentioned earlier) was filed in terms of Order XXII Rule 4 of the Code of
Civil Procedure. The appellant of the second appeal claimed that the deceased
left behind two daughters and thus, furnished their name in the petition filed
under Order XXII Rule 4 of the Code of Civil Procedure. Another interlocutory
application was filed in the Second Appeal, which is I.A. No. 9452 of 2017,
wherein one Julian Kerkette claimed himself to be the only son of the deceased
and sought permission to implead himself to contest the case. Thus, this Court
in the Second Appeal felt that there is dispute as to who is the legal
representative, so referred the matter under proviso to Rule 5 of Order XXII of
the Code of Civil Procedure to the Trial Court.
6. For better appreciation, it is necessary to quote Order XXII Rule 5
of the Code of Civil Procedure:-
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 subordinate Court to try the question and
to return the records together with evidence, if any, recorded
at such trial, its findings and reasons therefor, and the
Appellate Court may take the same into consideration in
determining the question.
7. From perusal of the said provision of law, it is clear that to resolve a
dispute as to whether a person is or is not a legal representative of the
deceased, Rule 5 of Order XXII is invoked. To determine the question, when it
arises before an Appellate Court, the Appellate Court before determining the
question (emphasis added), has to direct any subordinate Court to try the
question and return the record together with evidence, if any recorded, its
findings and reasons thereof to the Appellate Court. The Appellate Court,
thereafter, may take the same into consideration in determining the question
(emphasis added).
8. As mentioned, all these proceedings had taken place and an order
was passed in the second appeal, which is pending before this Court. As a
substitution petition was filed before this Court in Second Appeal No.542 of
2003, it is the Appellate Court, which has to determine the question as to
whether the person is or is not a legal representative of the deceased. The word
'Court' used in first paragraph of Rule 5 of Order XXII of the Code of Civil
Procedure refers to the 'Appellate Court' and not to any other Court. I come to
the said conclusion because the question as to who is the legal representative
has to be decided while disposing an application filed under Order XXII Rules 2,
3 and 4 of the Code of Civil Procedure. When during pendency of an appeal, a
party dies, such petition under Order XXII Rule 2, 3 and 4 of the Code of Civil
Procedure is naturally filed before the Appellate Court and it is the Appellate
Court, who has to decide as to who is the legal representative. Thus, the
determination, as to who is legal representative, has to be done by the
Appellate Court and no other Court. This is also because the lis is pending
before that Appellate Court and no other Court is in seisin of the lis, i.e., the
appeal. Thus, in the instant case, it is this High Court, as the Appellate Court,
where the Second Appeal is pending, which has to determine as to whether the
person is or is not legal representative of the deceased Most. Beronica
Khariain.
9. The proviso of Rule 5 of Order XXII of the Code of Civil Procedure
provides that while determining such question, the Court may, before
determining such question, direct the Subordinate Court to try the question.
Here also the 'Court' means the Court which is in seisin of the appeal, i.e., the
Appellate Court. The power has been bestowed upon the Trial Court to record
evidence and record its finding. As per the said proviso, it is the duty of the Trial
Court to record evidence and try the question and reach at a finding based on
the reasons and return the records along with the evidence and the findings.
The ultimate decision is of the Appellate Court.
From perusal of Rule 5 of Order XXII of the Code of Civil
Procedure, it can be said that it is the Appellate Court and not the Trial Court,
who has to determine the question.
10. Now, one question which falls for consideration is what is the
nature of the order, which the Trial Court passes in terms of proviso of Rule 5 of
Order XXII of the Code of Civil Procedure.
11. From perusal of the proviso of Rule 5 of Order XXII of the Code of
Civil Procedure, if it is read in harmony with the first part of Rule 5, as held
earlier, the question as to who is the legal representative has to be determined
by the Appellate Court. Thus, the jurisdiction to determine the issue finally is
vested with the Appellate Court, the Trial Court cannot finally determine the
issue as to who is the legal representative. Further, the proviso of Rule 5 of
Order XXII of the Code of Civil Procedure provides that the Trial Court has to
"try the question" and return the records with evidences, its findings and
reasons thereof. This finding of the Trial Court on the issue cannot be said to be
conclusive and binding. This is because of the reason that the ultimate
determination has to be done by the Appellate Court. In view of the aforesaid
provision of law, it can be safely held that the conclusion, which the Trial Court
arrives at in terms of proviso of Rule 5 of Order XXII of the Code of Civil
Procedure, is not a final order passed under Order XXII Rule 2, 3 and 4 of the
Code of Civil Procedure, rather, it is mere findings only for the purpose of
assisting the Appellate Court, to arrive at a conclusion on the issue as to who is
the legal representative. The findings of the Trial Court is his opinion, which has
got no binding effect. The Appellate Court may accept the said findings or may
not. It is the Appellate Court, who has to independently decide the issue, may
be, by taking help from the findings of the Trial Court.
12. Since the statute confers the power upon the Appellate Court to
determine the issue, that is the reason why in the proviso to Rule 5 of Order
XXII of the Code of Civil Procedure, the Trial Court is directed to return the
records to the Appellate Court, otherwise, there would not have been any
reason to return the records. This entire procedure, as prescribed in proviso to
Rule 5 of Order XXII of the Code of Civil Procedure is interlocutory in nature,
pending an application under Order XXII Rule 2, 3 and 4 of the Code of Civil
Procedure before the Appellate Court. The findings of the Trial Court, in terms
of the proviso to Rule 5 of Order XXII of the Code of Civil Procedure, does not
dispose of a petition under Order XXII Rule 2, 3 and 4 of the Code of Civil
Procedure, rather a final order on the aforesaid petition has to be passed by the
Appellate Court, taking into consideration the record, which has been returned
by the Trial Court. The findings of the Trial Court does neither take away nor
confers any right on any of the parties to the Second Appeal. The right only
crystalises after the final order is passed on an application under Order XXII
Rule 2, 3 and 4 of the Code of Civil Procedure, when the Appellate Court
disposes the said application. The Trial Court's findings may or may not be
accepted by the Appellate Court while deciding the issue, so the findings of the
Trial Court, by itself, has got no relevance until and unless the same is affirmed
or rejected by the Appellate Court while determining the issue as to who is the
legal representative. Since no right of any of the parties is infringed by the
findings of the Trial Court, which the Trial Court arrives in terms of proviso to
Rule 5 of Order XXII of the Code of Civil Procedure, it cannot be said that the
said findings is appealable or revisable by filing a separate appeal, application
or revision.
13. In the instant case, the Second Appeal is pending so is the
Substitution Application in the said appeal, which has been filed under Order
XXII Rule 3 of the Code of Civil Procedure, which is yet to be finally decided. On
return of the records by the Trial Court, this Court will finally adjudicate the
petition filed under Order XXII Rule 3 of the Code of Civil Procedure by duly
considering the evidence, findings and reasons arrived at by the Trial Court.
This Court may accept the said findings or may not. This is an independent
application of mind, which the Appellate Court, i.e., the High Court in this case,
has to exercise.
14. Since the findings of the Trial Court and the reasons at this stage
has not affected any right of the petitioner, this Court is of the opinion that this
fresh application under Section 151 of the Code of Civil Procedure read with
Article 227 of the Constitution of India and registering it to be a fresh case is
erroneous and is not maintainable. If a person is aggrieved by the findings
arrived at by a Trial Court, as per proviso to Rule 5 of Order XXII of the Code of
Civil Procedure, no appeal or revision will lie, nor an application under Articles
226 or 227 of the Constitution of India will lie. A separate case cannot be
registered. His remedy lies in filing an objection to the application filed for
substitution, and thereafter to contest the said findings before the same
Appellate Court, which is in seisin of the appeal, where the petition for
substitution is pending. He has a right and remedy to oppose the findings by
filing an appropriate objection petition when the Court finally hears the
application under Order XXII Rule 2, 3 and 4 of the Code of Civil Procedure to
find out as to who is or is not the legal representative of the deceased-
respondent. The judgment cited by the counsel for the petitioner has got no
relevance on the facts of this case and the law point which is involved in this
case.
15. Another aspect, which cannot be lost sight of, is that if this Court
hears this application on merits, arrives at any conclusion, and decides the
case, the same will amount to deciding the application under Order XXII Rule 4
of the Code of Civil Procedure. This is not the procedure to be followed. This
will also amount to procedural irregularity.
16. In view of what has been held above, I am constrained to hold that
the findings and the reasons given by the Trial Court in terms of proviso to Rule
5 of Order XXII of the Code of Civil Procedure, cannot be challenged by filing an
application under Section 151 of the Code of Civil Procedure read with Article
227 of the Constitution of India nor by filing any appeal or revision nor any
separate case can be registered challenging the said findings. The said reasons
and findings can be objected to and can be contested before the Appellate
Court at the stage when the Court, after receipt of the record from the Trial
Court, proceeds to decide and dispose of the application under Order XXII Rule
2, 3 and 4 of the Code of Civil Procedure.
17. In view of what has been held above, this civil miscellaneous
petition is not maintainable. The same is, hereby, dismissed. Liberty is reserved
with the petitioners to file an appropriate objection in I.A. No.2861 of 2017 and
I.A. No.9452 of 2017 in Second Appeal No.542 of 2003, which are pending
before the High Court to arrive at a conclusion as to who are the legal
representative.
( Ananda Sen, J.)
Kumar/Cp-2
