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2004 DIGILAW 294 (PNJ)

Baini Parshad Udyog v. Nirmal Gupta

2004-03-12

M.M.KUMAR

body2004
Judgment M.M.Kumar, J. 1. This petition filed under Section 115 of the Code of Civil Procedure, 1908 (for brevity the Code) prays for setting aside order dated 7.1.2004 passed by the Civil Judge (Jr. Division), Jagadhari holding that Nirmal Gupta one of the legal representatives of Sham Lal has been rightly impleaded as plaintiff after the death of her husband Sham Lal Gupta who was the original plaintiff. The basis of the aforementioned view taken by the Civil Judge is that all the legal heirs are not required to be brought on record in view of the affidavit (Annexure A1) sworn by all the legal heirs of deceased Sham Lal Gupta stating that they have no objection if Nirmal Gupta is substituted as legal representative of Sham Lal. 2. It is appropriate to mention that Sham Lal the original plaintiff filed Civil Suit No. 135 of 16.4.1998 under Order XXXVII of the Code for recovery of Rs. 30,000/- as principal amount and Rs. 12,000/- as interest on the basis of pronote dated 17.4.1995. Sham Lal Gupta died on 7.2.2003 and thereafter an application was moved by Nirmal Gupta for substituting her as plaintiff in the suit. The same was objected to by the defendant-petitioner by stating that either there should be succession certificate or all the legal heirs should be brought on record. The aforementioned objections have been overruled by the Civil Judge by observing as under:- "On the bare perusal of the documents and arguments advanced by the ld. counsel for the parties, the objection taken by the respondent-defendant is that the applicant has not brought all legal heirs upon the file but on the bare perusal of the case file specifically the affidavit Annx. A/1 sworn by the legal heirs of the deceased Sham Lal Gupta, it comes out that the other LRs have no objection, if the present applicant is allowed to be impleaded as LRs of the deceased." 3. Mr. Ravindra Jain, learned counsel for the defendant-petitioner has argued that either all the legal representatives of Sham Lal Gupta should be joined as plaintiffs or there should be succession certificate. In support of his submission, the learned counsel has placed reliance on a judgment in the case of Geevarghese Geevarghese and Anr. v. Issahak Georage and Ors., A.I.R. 1971 Kerala 270 and a judgment of this Court in the case of Karamjit Kaur and Anr. In support of his submission, the learned counsel has placed reliance on a judgment in the case of Geevarghese Geevarghese and Anr. v. Issahak Georage and Ors., A.I.R. 1971 Kerala 270 and a judgment of this Court in the case of Karamjit Kaur and Anr. v. Gurbant Singh and Ors., (2003-2)134 P.L.R. 707. 4. Having heard the learned counsel, I am of the considered view that this petition is devoid of any merit and is thus liable to be dismissed because all the legal heirs have given up their claim in favour of Nirmal Gupta in so far as the suit filed by Sham Lal Gupta is concerned. The affidavit given by all the legal representatives is Annexure A1. There is no challenge to the affidavit that the same is false or has been brought on record by any misrepresentation or fraud. In the absence of any such allegation, the affidavit has to be accepted prima facie as correct. I am further of the view that in the instant case the Civil Judge adjudicated upon the question and on the basis of affidavit Annexure A-1 has concluded that Nirmal Gupta is entitled to be impleaded as legal representative of her husband as all the other legal heirs have given that right to her by affidavit Annexure A1. 5. Moreover, under Order XXII Rule 5 of the Code the procedure of impleadment of a party does not result into a final adjudication on the validity of the will and as such would not operate as res judicata. The aforementioned view has been taken by this Court in the case of Pardeep Singh v. Smt. Usha Sood, (2002-2)131 P.L.R. 36. The aforementioned view is also supported by a Full Bench decision of this Court in the case of Mohinder Kaur v. Piara Singh, A.I.R. 1981 Punjab and Haryana 130. Therefore, there is no ground to entertain the argument that final adjudication on the status of Nirmal Gupta was required to be pronounced before she could be joined as legal representative. 6. The judgments in the cases of Geevarghese Geevargheses case (supra) and Karamjit Kaurs case (supra) are entirely different because in those cases the will was sought to be relied without being probated and final determination of the question had fallen for consideration. In Karamjit Kaurs case (supra) there was no adjudication. 6. The judgments in the cases of Geevarghese Geevargheses case (supra) and Karamjit Kaurs case (supra) are entirely different because in those cases the will was sought to be relied without being probated and final determination of the question had fallen for consideration. In Karamjit Kaurs case (supra) there was no adjudication. The impleadment of parties does not finally determine the issue of validity of will as has been held by this Court in the case of Pardeep Singhs case (supra). Therefore, there is no merit in the petition and the same is liable to be dismissed. 7. For the reasons recorded above, this petition fails and the same is dismissed.Petition dismissed.