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2011 DIGILAW 302 (CAL)

Ganesh Chandra Matty v. Bimala Bala Mondal

2011-03-03

DIPANKAR DATTA

body2011
JUDGMENT 1. THE plaintiff in Title Suit No.4485 of 2008 expired. THE opposite party Nos. 1 to 5 herein, claiming to be legal representatives of the deceased plaintiff, filed an application under Order 22 Rule 3 of the Code of Civil Procedure before the Trial Court. 2. THE application was opposed by the defendant No. 1 petitioner. According to him, the applicants (opposite parties 1 to 5) were not the legal representatives of the deceased plaintiff. Accordingly, he prayed for determination of the status of the applicants under Order 22 Rule 5 of the Code. The learned Trial Court, after hearing the parlies, observed that the defendants including the petitioner herein, in course of trial, would get opportunity to lead evidence and also to cross-examine the applicants for the purpose of establishing that they are not the legal representatives of the deceased plaintiff and, accordingly, declined to prolong the trial by embarking on a determination under Rule 5 at that stage. This order is under challenge in the present application under Article 227 of the Constitution of India. 3. LEARNED Advocate for the petitioner contended that the learned Judge committed gross error of jurisdiction in not determining the question as to whether the applicants/opposite party Nos. 1 to 5 were really the legal representatives of the deceased plaintiff or not. He cited the decision reported in AIR 2008 SC 2866 to contend that instead of postponing decision, the Court ought to have given its decision in respect of determination of the heirs or legal representatives of the deceased plaintiff. 4. I have perused the said decision. The said decision is not applicable owing to the fact that there two rival groups seeking to succeed to the estate of the deceased had set up claims and thus in such circumstances the Court observed that the High Court should have directed the subordinate Court to have a determination in the line of Rule 5 of Order 22. In the facts of the present case, apart from the applicants/opposite party Nos.1 to 5, there is no other group claiming to be the legal representatives of the deceased plaintiff. As such, the learned Judge, in my opinion, was right in not accepting the objection raised by the defendant No.1 petitioner. The other decision that has been cited is reported in 2009(5) SCC 155 turns on the facts of the case before the Supreme Court. As such, the learned Judge, in my opinion, was right in not accepting the objection raised by the defendant No.1 petitioner. The other decision that has been cited is reported in 2009(5) SCC 155 turns on the facts of the case before the Supreme Court. The application and the appeal of the appellants stood dismissed by the impugned order of the High Court on the ground of abatement and not on the ground that the appellants were not the legal representatives of the deceased. In such circumstances, the Supreme Court observed that determination under Rule 5 of Order 22 was necessary which the High Court did not direct and, therefore, erred in exercise of its jurisdiction. The decision is thus distinguishable. 5. THE last decision cited by the learned Advocate reported in AIR 1985 SC 796 has no manner of application, particularly in view of the stage at which the impugned order has been passed. 6. FOR the reasons aforesaid, I find no reasons to interfere. The application stands dismissed without order as to costs. Urgent certified photostat copy of this order if applied for, be supplied to the parties expeditiously.