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2000 DIGILAW 865 (MP)

Munna Khan v. Kamla Bai

2000-08-19

SHAMBHOO SINGH

body2000
1. This revision-petition under section 115 of the CPC is directed against the order dated 29.7.1998 passed by the IInd Additional District Judge, Mandsaur in Misc. Appeal No. 1/98 whereby the application of respondents nos. 1 and 2 under order 22 Rule 3 CPC was allowed. 2. The facts of the case are that Bhuwan (since deceased) filed civil suit against the petitioner-defendant about the disputed property. He filed an application under Order 39 Rule 1 and 2 CPC for issuance of temporary injunction against the petitioner. This application was dismissed by the trial Court. The plaintiff filed Misc. Appeal No. 1/98. During the pendency of this appeal Bhuwan died. The respondent No. 1 Kamla Bai and respondent No. 2 Hemraj filed application under Order 22 Rule 3 CPC for substitution of their names in place of Bhuwan on the ground that Kamla Bai was the widow of the deceased and the deceased had executed a will in favour of the respondent No. 2 Hemraj. The learned ADJ vide order dated 29.7.1998 allowed the application and ordered that they be brought on record. This order is being challenged by the petitioner-defendant in this revision. 3. Shri V.K. Jain, LC for the petitioner, submitted that he had no objection about Kamla Bai, the widow of deceased plaintiff, being brought on record. However, he submitted that the learned ADJ ought to have directed the Trial Court to make enquiry under Order 22 Rule 5 CPC and thereafter should have passed order about substitution of the names of the legal representatives of the deceased. He, therefore, prays that the impugned order be set-aside and the Trial Court be directed to make enquiry on the application filed by the respondents Nos. 1 and 2 under Order 22 Rule 3 CPC and thereafter pass appropriate order. Shri Jain further submitted that the respondent No. 2 Hemraj did not obtain probate of the will, therefore, he cannot be brought on record. On the other hand, Shri Manana, LC for respondents Nos. 1 and 2, submitted that respondent No. 2 Hemraj is resident of Madhya Pradesh and the disputed property is also situated in Madhya Pradesh, therefore, there was no need for obtaining probate of the will and in absence of probate the respondent could maintain his application. 4. I considered the arguments advanced by counsel for both sides. 1 and 2, submitted that respondent No. 2 Hemraj is resident of Madhya Pradesh and the disputed property is also situated in Madhya Pradesh, therefore, there was no need for obtaining probate of the will and in absence of probate the respondent could maintain his application. 4. I considered the arguments advanced by counsel for both sides. Admittedly, the executor was resident of M.P. and the disputed property is also situated in M.P. therefore, it was not necessary to obtain probate - Dr. Ramcharanlal vs. Madholal, 1978 (2) MPWN 86 and Sunderbai vs. Hajarabi, 1976 JLJ 23. 5. So far as the question of making enquiry regarding the fact whether Hemraj was legal representative of the deceased Bhuwan, the learned Appellate Judge held that he filed registered will, allegedly executed by the deceased and, therefore, his interest was involved in the disputed property, therefore, he was LR of the deceased Bhuwan, hence his name was ordered to be brought on record alongwith the widow in place of the deceased Bhuwan. The parties have not filed copies of the plaint and written statement nor filed the copy of the application under order 22 Rule 3 CPC. As observed earlier, the respondent Hemraj filed registered will and on the basis of which appellate Judge directed his name to be brought on record. It does not appear to be the case of the petitioner that Bhuwan did not execute the will filed by the applicant Hemraj. Looking to all the facts and circumstances of the case. I do not find any jurisdictional error in the impugned order. The revision-petition is, therefore, dismissed. No order as to costs.