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2001 DIGILAW 636 (MP)

Jagdamba Prasad Khandelwal v. Shanti Devi

2001-08-27

S.S.JHA

body2001
JUDGMENT This revision is filed against. the order passed by the trial Court whereby directions have been given to adduce evidence on the application under order 1 rule 10 CPC and for taking a 'Will' on record. A civil suit for eviction was filed by Ramkatori Bai. Ramkatori Bai pleaded in her plaint that the suit premises is required bona fide for the need of her son Jagdamba Prasad. Written-statement was filed by defendant No.2 to 6 and defendant No. 1 was proceeded ex-party. During trial, Ramkatori Bai died on 20.7.1998. After the death of Ramkatori Bai, an application under order 22 rule 3 CPC was filed on behalf of her son Jagdamba Prasad (petitioner in this revision). An application was filed by the defendants alleging therein that the 'Will' filed by the petitioner is a forged document. The defendants, however, raised a plea that they are tenants of Radheshyam. On the application under order 22 rule 3 CPC. trial Court has evolved a novel procedure and directed parties to lead evidence on the 'Will' thereby trial Court itself has protracted the trial. While the application under order 22 rule 3 CPC was under consideration another application was filed by one Radheshyam under order 1 rule 10 CPC to be impleaded as a party in the suit. Trial Court has passed orders that parties should produce evidence on this application. The only question involved in the case is whether the procedure adopted by trial Court is proper or improper? It is an admitted position that Jagdamba Prasad is an heir of the deceased. Suit was filed for bona fide need of Jagdamba Prasad, son of the original plaintiff. Thus, the son is a legal representative under the law and there was no reason for trial Court to consider the application and defer the application for recording evidence. So far as ousting the other legal representatives by virtue of 'Will' is concerned, it is a dispute between the heirs of Ramkatori Bai and the tenants have no right to challenge the 'Will' or claim that other legal representative should to be brought on record. In an ejectment suit, Court has to satisfy that the Estate of deceased is represented. Unless 'Will' is disputed by other legal representatives, it is not open for tenant to challenge the 'Will'. In an ejectment suit, Court has to satisfy that the Estate of deceased is represented. Unless 'Will' is disputed by other legal representatives, it is not open for tenant to challenge the 'Will'. The purpose of eviction suit will be lost if proceedings are protracted, if each interlecutory application is decided after recording evidence. From reading of the plaint itself it was apparent that the petitioner is the son of the deceased plaintiff. There was no reason to defer the application for recording evidence. The trial Court has fixed the case for enquiry on the application under order 1 rule 10 CPC. In the case unless name of plaintiff is substituted question of impleading party docs not arise. Unless plaintiff is represented then only application under order 1 rule 10 CPC can he considered. It is, therefore, ordered that trial Court shall proceed further and decide the application for substitution of legal representative of the plaintiff, in accordance with law without recording evidence. The application should be decided by the trial Court within a period of three days from receiving the copy of this order. After the orders on application for substitution are passed, the application under order 1 rule 10 CPC shall be decided by the trial Court after hearing the arguments of the plaintiffs and defendants. The trial Court must keep in its mind that in a civil suit plaintiff is a 'dominus litis' and without considering the wish of the plaintiff no order for impleading party under order 1 rule 10 CPC can be passed. In the facts and circumstances of the case revision succeeds and is allowed and the trial Court is directed to decide the application as directed above. This Court while exercising the revisional power under section 115 CPC quash the order of trial Court whereby it has directed for recording evidence on application under order 22 rule 3 CPC.