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1992 DIGILAW 155 (GAU)

Parashmal Jain; Daulatraj Jain v. Gaya Prasad Poddar

1992-11-27

S.K.HOMCHAUDHURI

body1992
A common point of law having involved in both these revision petitions, these are disposed of by this common judgment. 2. Civil Revision No.3 of 1989 arises out of the order passed in Title Suit No.42 of 1982 instituted by the original plaintiff, Anandi Devi Poddar (since dead). Civil Revision No.246 of 1989 arises out of the order passed in Title Suit No.6 of 1984 which was also instituted by the same plaintiff. 3. The plaintiff of both the suits, namely, Smti Anandi Devi Poddar, having died during the pendency of the suits, an application for substitution was filed by Gaya Prasad Poddar claiming himself to be the heir/legal representative of deceased plaintiff in both the suits. Objection was raised by each of the defendant* of the suits urging the common point that Gaya Prasad Poddar was not the heir/legal representative of the deceased plaintiff Smti Anamdi Devi Poddar, as she died childless. But Gaya Prasad Poddar, who was appointed as constituted attorney of late Anandi Devi Poddar, made an application stating that he was the adapted son of late Anandi Devi Poddar, the plaintiff (deceased) and as such, he should be allowed to be substituted in place of deceased plaintiff In both the suits. Gaya Prasad filed 2 documents of adaptation in support of his claim that he was adapted by the plaintiff as her son. The learned Munsiff being satisfied from the materials on records t hat Gaya Prasad was the adapted son of the deceased plaintiff, by the impugned order dated 9.12.88 passed in Title Suit No.42 of 1982 and the order dated 15.5.89 passed in Title Suit No.6 of 1984 allowed the prayer for substitution. The defendant has impugned the said order dated 9.12.88 passed in Title Suit No.42 of 1932 and other order dated 15.5.89 passed in Title Suit No.6 of 1984 passed by the learned Munsiff in Civil Revision No.3 of 1989 and Civil Revision No.246 of 1989 respectively. 4. I have headd Mr. J. N. Sarma, learned counsel for the petitioners and Mr. B. K. Jain, learned counsel for the opposite party respectively in both the revision. 5. Mr. Sarma submits that the impugned orders in both the revisions were passed by the learned Munsiff without giving any reason. 4. I have headd Mr. J. N. Sarma, learned counsel for the petitioners and Mr. B. K. Jain, learned counsel for the opposite party respectively in both the revision. 5. Mr. Sarma submits that the impugned orders in both the revisions were passed by the learned Munsiff without giving any reason. The learned Munsiffin both the suits simply set out the relevant pleadings and came to the finding that Gaya Prasad Poddar was the adapted son of the deceased plaintiff, As such, the impugned orders can not be sustained. 6. Mr. Jain on the other hand submits that in an application under Order 22 Rule 3 of CPC, orders are passed in summary enquiry in the pending proceedings and such order may not operate as res-judicata. The learned Munsiff on the materials on record having been prima facie satisfied that Gaya Prasad Poddar was the adapted son of the deceased plaintiff, allowed the prayer for substitution. Learned counsel further submits that the question whether Gaya Prasad Poddar is the heir/legal representative of the deceased plaintiff may be considered by the learned trial Court while deciding the suit on merit. 7. I have considered the submissions made on behalf of the petitioners as well as on behalf of the opposite parties and have perused the materials on records. In the plaints of both the suits, original plaintiff late Anandi Devi Poddar averred that she needs the suit premises bohafide as she has married son having children and she was living with her son and his family in the house of a relative which was quite insufficient for their living. In the power of attorney executed by late Anandi Devi Poddar appointing Gaya Prasad Poddar as constituted attorney, she has stated that Gaya Prasad Poddar was the son of late Mahadev Prasad Poddar. Besides, the documents of adaptation were also filed. It is apparent that from all these materials on records, the learned Munsiff was prima facie satisfied that Gaya Prasad Poddar was the adapted son of late Anandi Devi, the deceased plaintiff, and allowed the prayer for substitution. Enquiry in an application under Order 22 Rule 3 CPC being a summary one, the learned Munsiff has committed no error of jurisdiction in passing the impugned orders in Title Suit No.42 of 1982 and Title Suit No.6 of 1984 respectively which merits inter­ference. Enquiry in an application under Order 22 Rule 3 CPC being a summary one, the learned Munsiff has committed no error of jurisdiction in passing the impugned orders in Title Suit No.42 of 1982 and Title Suit No.6 of 1984 respectively which merits inter­ference. However, it is made clear that the impugned1 order will not operate as res-judicata. The learned Munsiff while deciding th6 suit on merit will also Consider the question whether the opposite party Gaya Prasad Poddar is the heir/legal representative of the deceased plaintiff'- late Anandi Devi Poddar by framing the separate issue -'Whether Gaya Prasad Poddar Is the heir/legal representative of the original plaintiff, late Anandi Devi Poddar ?". 8. With the above direction, the revision petitions are dismissed. 9. The suits are of 1982 and 1984. The learned Munsiff will dispose of the suits expeditiously, preferably within a period of 6 (six) months from the date of receipt of the records.