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2015 DIGILAW 641 (ORI)

Shamima Khatoon v. Sayed Md. Zikaruna Babi

2015-11-19

BISWANATH RATH

body2015
JUDGMENT BISWANATH RATH, J. - This writ petition has been filed by the petitioner challenging a part of the order dated 16.03.2011 particularly keeping the matter of substitution as against the defendant No.1 in the suit deciding an application under Order-22 Rule 5 of the C.P.C. open with observation that the issue can be re-agitated in case of hearing of the suit. 2.Challenging this part of the order passed in C.S. No.106/04, learned counsel for the petitioner submits that once there is a full fledged probe in the matter of submission of the party for considering an application under Order 22 Rule 4 applying the provision under Order 22 Rule 5, the trial Court was not justified in keeping the position of the party substituted open for the purpose of the decision in the suit. In the premises, learned counsel for the petitioner seeks for interference of this Court in that particular part of the impugned order. 3.Learned counsel for the opposite party on the other hand submits that since the inquiry is restricted in relation to an application under Order 22 Rule 4 of C.P:.C., the question of such illegal representation and his right thereof can be a subject matter in the trial of the suit. 4.Facts reveals from the case history is that on the death of defendant No.1, the plaintiff filed an application under Order 22 Rule 4 of C.P.C. for bringing her husband as the legal representative of the defendant No.1 by way of substitution and considering the rival contention of the parties, the trial Court felt it necessary to conduct an inquiry applying the provision under Order 22 Rule 5 of the C.P.C. and on such inquiry allowed the application under Order 22 Rule 4 thereby substituting the husband of the plaintiff as against defendant No.1 but keeping the right of the substituted defendant to be agitated and adjudicated upon in the suit. Order 22 Rule 5 of the C.P.C. reads as follows : “5. Order 22 Rule 5 of the C.P.C. reads as follows : “5. Determination of question as to legal representative – Where a question arises as to whether any person is or is not the legal representative of a deceased plaintiff or a deceased, such question shall be determined by the Court: (Provided that where such question arises before an Appellate Court, that Court may, before determining, the question, direct any subordinate Court to try the question and to return the records together with evidence, if any, recorded at such trial, its findings and reasons therefore, and the Appellate Court may take the same into consideration in determining the question).” 5.Looking to the provisions referred to hereinabove, it is amply clear that the Court of competency has the authority to decide the question of substitution resorting to the provision contained in Order 22, Rule 5 of C.P.C. Hence the question falls for consideration here is that in the event of a decision for substitution applying the provision under order 22 Rule 5 of C.P.C., whether it preclude the parties to raise a dispute with regard to right of such parties in the particular suit ? 6.Bare reading of the Order 22 Rule 5 read with Order 22 rule 4, makes it clear that the provision under Order 22 Rule 5 is available as a special contingency, in considering the application under Order 22 Rule 4 and cannot be read beyond that. 7.The problem as narrated hereinabove arises out of an application for substitution and the impugned order has been passed taking resort to the provision contained in Order 22 Rule 5 of the C.P.C. under the special contingency available to be resorted in deciding an application under Order 22 Rule 4. This Court is of the view that taking a decision in the matter of substitution in considering an application under Order 22 Rule 4 applying the provision contained in Order 22, Rule 5 of C.P.C. restrict the right of party in the matter of adjudication of the said issue in the very suit. On a similar situation Hon’ble Supreme Court in deciding a case in between Mrs. Annupam Pruthi and others Vrs. On a similar situation Hon’ble Supreme Court in deciding a case in between Mrs. Annupam Pruthi and others Vrs. Smt. Rajen Bal & others as reported in AIR 1988 SC 2041 , categorically held that since the substitution application has already been disposed of, that question could not be reopened at the instance of Smt. Rajesh Bal and further held that this issue can be agitated in an appropriate proceeding and the order passed in the case may not prejudice her claim. In a case in between Vijayalakshmi Jayaram. Appellant vs. M.R.Parsuram and others, Respondent as reported in AIR 1995 Andhra Pradesh 351, the Andhra Pradesh High Court in referring to a decision of a full Bench of Pubjab & Hariyana High Court in between Mohinder Kkau & Anr. Vs. Piara Singh & Ors. as reported in AIR 1981 Punjab & Hariyana, 130 observed the view of Punjab & Hariyana High Court that the determination of the point as to who is the legal representative of the deceased plaintiff or defendant under Order 22 Rule 5 of the C.P.C. is only for the purpose of bringing legal representative on record for conducting of those legal proceedings only and does not operate as res-judicata and the inter-se dispute between rival legal representative has to be independently tried and decided in separate proceedings. Relying upon the aforesaid decision and another decision as reported in AIR 1988, Punjab & Hariyana, 123, the Andhra Pradesh High Court affirmed the view of the Punjab & Hariyana High Court. In a case in between Dashrath Rao Kate, Appellant Versus Brij Mohan Srivastava, Respondent as reported in 2010 (I) OLR (SC) – 84 deciding a case of similar nature, the Hon’ble Apex Court came to hold that since an inquiry under Order 22 rule 5 C.P.C. is a summery nature, the findings therein cannot amount to res-judicata. Observation of Hon’ble Apex Court in paragraph-18 reads as follows : “18. Dr. Kailash Chand, Learned Counsel, appearing for the respondent also relied on ruling in Vijayalakshmi Jayaram Vs. M.R. Parasuram ( AIR 1995 A.P:. 351). It is correctly held by the Andhra Pradesh High Court that the Order 22 Rule 5 is only for the purpose of bringing legal representatives on record for conducting of proceedings in which they are to be brought on record and it does not operate as res-judicata. M.R. Parasuram ( AIR 1995 A.P:. 351). It is correctly held by the Andhra Pradesh High Court that the Order 22 Rule 5 is only for the purpose of bringing legal representatives on record for conducting of proceedings in which they are to be brought on record and it does not operate as res-judicata. However, the High Court further correctly reiterated the legal position that the inter se dispute between the rival legal representatives has to be independently tried and decided in separate proceedings. Here, there was no question of any rivalry between the legal representatives or anybody claiming any rival title against the appellant/plaintiff. Therefore, there was no question of the appellant/plaintiff proving the Will all over again in the same suit. The other judgment relied upon is Full Bench Judgment of Punjab & Haryana High Court in Mohinder Kaur & Anr.Vs. Piara Singh & Ors. (AIR 1931 Punjab & Haryana 130). The same view was reiterated. As we have already pointed out, there is no question of finding fault with the view expressed. However, in the peculiar facts and circumstances of this case, there will be no question of non-suiting the appellant/plaintiff, particularly because in the same suit, there would be no question of repeating the evidence, particularly when he had asserted that he had become owner on the basis of the Will ( Exhibit P-1), In a case in Shaligram Bhagoo Kunbii & Anr. Vs. Mt. Dhurpati W/o. Shamrao Kunbi (AIR 1939 Nagpur 147), the Division Bench of that Court consisting Hon’ble Stone C.J. and Hon’ble Vivian Bose, J., considered the question. The Division Bench, firstly quoted from Tarachand Vs Mr. Janki (AIR 1916 Nag. 89).The quotation relief on was as follows : “It is no longer open to the Court to stay the suit until the dispute as to who is the legal representative of a deceased plaintiff has been determined in a separate suit. The question as to who was the representative of a deceased defendant could not be left open for decision in another suit, even under the old Code, but had to be decided by the Court itself. Under the present Code, all such questions have to be decided by the Court.” The Bench then proceeded to refer to Bombay High Court decision in Raoji Bhikaji Vs. Anant Laxman (1918) (5) AIR Bom 175) and Allahabad High Court decisions in Raj Bahadur Vs. Under the present Code, all such questions have to be decided by the Court.” The Bench then proceeded to refer to Bombay High Court decision in Raoji Bhikaji Vs. Anant Laxman (1918) (5) AIR Bom 175) and Allahabad High Court decisions in Raj Bahadur Vs. Narayan Prasad ( 1926 (13) AIR All. 439) and Antu Rai Vs. Ram Kinkar Rai (1936 (23) AIR All. 412) and went on to record that order under Order 22 Rule 5 was not a res judicata. After referring to these rulings, the Bench held :- “But there is an important qualification to this. It is true the order is not res judicata, but for all that, the decision is final so far as the suit in which it is made is concerned, not on the ground of res judicata but because of Section 47. No subsequent decision in a separate suit can be used to affect the rights of the parties so far as questions relating to the execution, discharge or satisfaction of the decree in connection with which the order was made is concerned.” The Bench further observed:- “Once a person is joined as a legal representative under Order 22 Rule 5, and once it is accepted that that is final so far as that litigation is concerned, then it follows to the decree, and, thereafter, all matters relating to the ‘execution, discharge or satisfaction’ of that decree must be decided under Section 47 and not in a separate suit,” Emphasis supplied). Ultimately, the Bench came to the conclusion.” “All that, in our opinion, is not res judicata is the question whether or not the person joined as the legal representative really occupies that character.That question is not finally concluded by a decision under Order 22 Rule 5 except in so far as it concerns the suit in which the decision is made. To that extent, we overrule the judgment in Mt. Laxmi Vs. Ganpat reported in 17 NLR 45.The appeal is dismissed with costs.” (Emphasis supplied). Therefore, it is clear that at least insofar as the suit in the present case is concerned, the question regarding the appellant’s right to represent was closed. There could be a second suit, questioning his entitlement on the basis of Will, but admittedly, there is no such challenge by anybody to his status as a legatee of Sukhiabai. Therefore, it is clear that at least insofar as the suit in the present case is concerned, the question regarding the appellant’s right to represent was closed. There could be a second suit, questioning his entitlement on the basis of Will, but admittedly, there is no such challenge by anybody to his status as a legatee of Sukhiabai. Insofar as the suit in the present case is concerned, the question was finally decided under Order 22 Rule 5, CPC and in the same suit, it could not be re-agitated. Obviously, the impugned judgment is incorrect when it holds that the appellant/plaintiff had to lead fresh evidence all over again to prove his status on the basis of the Will, which was held to be proved in the enquiry under Order 22 Rule 5 CPC.” Hon’ble Apex Court made it clear that at least in so far as the suit in the present case is concerned,the question regarding the appellant’s right to represent was closed. There could be a second suit; In so far as present suit is concerned the question was finally decided under Order 22, Rule 5 of C.P.C. and in the same suit it could not be re-agitated. 8.In view of the observations as well as findings of this Court hereinabove and the decision as reported in AIR 1988 SC 2041 , AIR 1995 Andra Pradesh, 351 and the decision of the Apex Court as reported in 2010 (I) OLR (SC)-84, this Court finds that the observation of the trial Court so far keeping the right of legal representative being added legal heir of the deceased open for adjudication in the same suit is erroneous. This Court declares this part of the impugned order as bad and holds the decision of the trial Court so far it relates to bring in the legal representatives on record is final in so far as the particular suit involved. Accordingly, the writ petition stands allowed to the extent indicated hereinabove. However, there shall be no order as to cost. Petition allowed to the extent indicated.