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2000 DIGILAW 329 (HP)

ROHIT MADAN v. KALAWATI

2000-12-21

M.R.VERMA

body2000
JUDGMENT M.R. Verma, J.:- This revision petition is directed against the order dated 30.10.1999 passed by the learned Sub Judge (4), Shimla in an application under Order 22 Rule 2 of the Code of Civil Procedure (here-after referred to as the Code") in Civil Suit No:222/1 of 99/98 whereby the said application has been allowed. 2. Brief facts leading to the present controversy are that respondents No.l to 4 and one Parwati Devi, since deceased, (here-after referred to as the plaintiffs") have instituted a suit for declaration with consequential relief of injunction against the petitioner and proforma respondent (here-after referred to as the defendants) which is pending disposal. During the pendency of the,-suit, plaintiff smt. Parwati Devi died and an application dated 21.7.1999 was moved by the surviving plaintiffs for bringing on record her legal representatives. It is averred in the application that the right to sue survives in favour of the surviving plaintiffs who are her legal heirs and are already on record. The application was contested by the defendants. In their reply they raised preliminary objections that the application is not maintainable as the suit has abated, that the requisite particulars have not been furnished and the application is not supported even by an affidavit and that the application is hopelessly time barred. On merits, the status of surviving plaintiffs as the legal representatives of the deceased plaintiff has been denied and it is claimed that the surviving plaintiffs are fully aware of the names of the legal heirs of the deceased plaintiff and they have deliberately omitted to bring them on record. The learned trial Judge, after hearing the parties but without framing any issue or recording any evidence, concluded that the surviving plaintiffs are the legal representatives/heirs of the deceased plaintiff; therefore, right to sue survives in their favour and accordingly allowed the application. 3. Feeling aggrieved, one of the defendants, namely, Rohit Madan has preferred the present petition wherein the other defendant has been arrayed as proforma respondent. 4. I have heard the learned counsel for the parties and have gone through the material on record. 5. It is admitted case of the plaintiffs that consequent upon the death of plaintiff No.l the cause to sue survives to them because they are her legal representatives and are already on record as plaintiffs. 4. I have heard the learned counsel for the parties and have gone through the material on record. 5. It is admitted case of the plaintiffs that consequent upon the death of plaintiff No.l the cause to sue survives to them because they are her legal representatives and are already on record as plaintiffs. The status of the surviving plaintiffs as the legal representatives of the deceased plaintiff is unambiguously and specifically denied by the defendants. Thus, the question whether the surviving plaintiffs are the legal representatives of the deceased or not necessarily arised for determination. 6. In Chaman Lal v. Asha Ram and others (Civil Revision Petition No. 314/98, decided on 10.7.2000,) this Court has held as follows:- "The question whether a person is the legal representative of the deceased or not is a mixed question of fact and law and once the status of a person as legal representative is called in question, the court is duty bound in view of the provisions of Order 22, Rule 5 C.P.C. to determine such questions and to hold an inquiry in which parties must be afforded an opportunity to lead evidence to prove their rival contentions." 7. There is no dispute that the application of the surviving plaintiffs to continue the suit as they were legal representatives of the deceased plaintiff, has been allowed by the learned trial Judge without holding any enquiry so much so that the application so allowed was not supported even by an affidavit. Therefore, the learned trial Judge acted illegally in holding the surviving plaintiffs as legal representatives of the deceased plaintiff in the absence of any inquiry as required by law. 8. It is the case of the defendants that persons other than the surviving plaintiffs are the legal representatives of the deceased and they have not been brought on record within the period of limitation; therefore, the suit has abated. This is yet another aspect of the dispute which called for an enquiry but none was conducted. 9. On the facts and in the circumstances as stated hereinabove, the Court below has exercised its jurisdiction illegally and with material irregularities in passing the impugned order which has resulted in miscarriage of justice. Therefore, the impugned order cannot be sustained 10. Resultantly, this petition is allowed and the impugned order is set aside. 9. On the facts and in the circumstances as stated hereinabove, the Court below has exercised its jurisdiction illegally and with material irregularities in passing the impugned order which has resulted in miscarriage of justice. Therefore, the impugned order cannot be sustained 10. Resultantly, this petition is allowed and the impugned order is set aside. The trial Court is directed to frame issues as arise out of the controversy raise*?* in the applicaton under Order 22 Rule 2 of the Code filed, by the plaintiffs and the reply thereto filed by the defendants and then to dispose of the applicaton in the light of the above observations and in accordance with law. 11. Costs on parties. 12. The parties, through their learned counsel, are directed to appear in the trial Court on 2.1.2001.