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2014 DIGILAW 218 (RAJ)

Sunder Lal v. Prahlad Mal Rohida

2014-01-17

BELA M.TRIVEDI

body2014
JUDGMENT 1. - The present writ petition filed under Article 226 and 227 of the Constitution of India is directed against the order dated 17.3.08 passed by the Addl. District Judge, Kota (hereinafter referred to as 'the appellate court')in Civil Regular Appeal No. 8/07, whereby the appellate court has rejected the application filed by the petitioner-applicant under Order 22, Rule 3 of CPC and dismissed the appeal as having been abated. 2. The short facts giving rise to the present petition are that the respondent-plaintiff had filed the suit being Civil Suit No. 2/02 against late Shri Hukmat Mal, father of the present petitioner, in the court of Addl. Civil Judge (JD) No.1, South, Kota, (hereinafter referred to as 'the trial court') on the ground of personal and bona-fide necessity. The said suit was decreed vide the judgment and decree dated 18.9.06. The original-defendant Hukmat Mal therefore preferred an appeal being Civil Regular Appeal No. 8/07 before the appellate court. During the pendency of the said appeal, the said appellant-original defendant Hukmat Mal expired on 19.11.06, and therefore an application under Order 22 of CPC for substitution of his legal representatives came to be filed by the petitioner on behalf of the legal representatives of the said Hukmat Mal. The said application was resisted by the present respondent on the ground that the petitioner was not the legal representative of the deceased appellant Hukmat Mal and, therefore, the application as well as the appeal deserve to be dismissed. The appellate court vide the impugned order dated 17.3.08 dismissed the said application of the petitioner and also dismissed the appeal filed by the deceased appellant Hukmat Mal, on the ground of having been abated. Being aggrieved by the said order, the present writ petition has been filed. 3. The learned senior counsel Mr. R.K. Agrawal for the petitioner submitted that the impugned order passed by the appellate court suffers from serious illegality, inasmuch as the appellate court had dismissed the application of the petitioner for bringing on record the legal representative of the deceased appellant Hukmat Mal, without holding any enquiry as contemplated under Order 22, Rule 5 of CPC. R.K. Agrawal for the petitioner submitted that the impugned order passed by the appellate court suffers from serious illegality, inasmuch as the appellate court had dismissed the application of the petitioner for bringing on record the legal representative of the deceased appellant Hukmat Mal, without holding any enquiry as contemplated under Order 22, Rule 5 of CPC. According to him the petitioner was ordinarily carrying on the business with his father in the suit premises, as a member of his family upto his death and, therefore was t he tenant under Section 3(7) of the Rajasthan Premises (Control of Rent & Eviction) Act, 1950 (hereinafter referred to as 'the said Act') and, therefore, the petitioner being the legal representative of the deceased appellant, had right to pursue the appeal before the appellate court. Mr. Agrawal has relied upon the decision of the Apex Court in the case of Kanhaiya Singh Santok Singh & Ors. v. Kartar Singh, (2009) 5 SCC 155 , in support of his submissions. 4. However, the learned senior counsel Mr. J.P. Goyal for the respondent submitted that the suit premises being the business premises, it was necessary for the petitioner-applicant to prove that he was carrying on the business with his father in the said premises upto his death, as per Section 3(7) of the said Act, however as rightly observed by the appellant court, the petitioner had shown himself as an employee of his father, in the evidence recorded before the trial court. According to Mr. Goyal, the petitioner being not the legal representative of the deceased appellant, could not have prosecuted further with the appeal, and the appellate court has rightly dismissed his application along-with the appeal which had already stood abated with the death of the appellant Hukmat Mal. 5. At the outset, it may be mentioned that on the death of the sole plaintiff-appellant, the court can permit a legal representative of the deceased plaintiff-appellant to be made a party if an application is made in that behalf within the prescribed time limit, otherwise the suit-appeal would stand abated, as contemplated under Order 22, Rule 3 of CPC. As per the definition of legal representative contained in Section 2(11) of CPC, "legal representative" means a person who in law represents the estate of a deceased person, and includes any person who inter-meddles with the estate of the deceased. As per the definition of legal representative contained in Section 2(11) of CPC, "legal representative" means a person who in law represents the estate of a deceased person, and includes any person who inter-meddles with the estate of the deceased. Rule 5 of the Order 22 also provides that where a question arises as to whether any person is or is not the legal representative of a deceased plaintiff or deceased defendant, such question shall be determined by the court, provided that where such question arises before the appellate court, that court may before determining the question direct any subordinate court to try the question and to return the record together with the evidence, if any recorded at such trial, its findings and reasons therefor, and the appellate court may take the same into consideration in determining the question. 6. In the instant case, it was disputed by the respondent before the appellate court that the petitioner-applicant being not the tenant within the meaning of Section 3(7) of the said Act, after the death of original tenant i.e. Hukmat Mal, he could not be said to be the legal representative of the deceased Hukmat Mal. The relevant part of Section 3(7) of the said Act reads as under:- "3(7) (a) ******** (b) in the event of death of the person as is referred to in sub-clause (a), his surviving spouse, son, daughter and other heir in accordance with the personal law applicable to him who had been, in the case of premises leased out for residential purpose, ordinarily residing and in the case of premises leased out for commercial or business purposes, ordinarily carrying on business with him in such premises as member of his family upto his death." 7. Now, since the questions had arisen before the appellate court as to whether the petitioner was the legal representative of the deceased-appellant Hukmat Mal or not, for the purpose of prosecuting further with the appeal and whether he was the "tenant" within the definition of Section 3(7) of the said Act or not, in the opinion of the court, it was necessary for the appellate court to determine the said questions by holding an enquiry by itself or by directing the subordinate court to try the said questions, as contemplated under Order 22, Rule 5 of CPC. The learned counsel Mr. The learned counsel Mr. Agrawal for the petitioner has rightly relied upon the decision of the Apex Court in case of Kanhiya Singh Santok Singh & Ors. v. Kartar Singh (supra) in this regard, in which the Apex Court has observed as under:- "19. Thus considering the ambiguous position regarding the status of the appellants relating to their status as tenants, it was necessary for the High Court to remit the matter to the trial court for a proper determination of the factual aspects whether the appellants were in fact carrying on business with late Santok Singh at the time of his death by taking evidence and thereafter come to a finding whether the appellants shall be brought on record in the second appeal as the legal representatives of late Santok Singh." 8. In the instant case also the appellate court was required to hold an enquiry under Order 22, Rule 5 , for determining the question as to whether the petitioner was the legal representative of the deceased appellant or not, and whether he should be brought on record in the appeal before it or not. That having been not done, the present writ petition deserves to be allowed. 9. In that view of the matter, the impugned order dated 17.3.08 passed by the appellate court is set aside. The appellate court is directed to hold an enquiry under Order 22, Rule 5 of CPC for determining the issue as to whether the petitioner-applicant was the legal representative of the deceased appellant or not and whether the petitioner could have proceeded further with the appeal after the death of the deceased-appellant Hukmat Mal. Such an enquiry may be held by the appellate court within three months from the date of the receipt of the certified copy of the present order. The office is directed to prepare the certified copy of this order at the earliest and the parties are also directed to produce the same before the appellate court at the earliest. The petition stands allowed accordingly.Petition allowed. *******