P.K. Mohanti, J.
1. Both the Civil Revisions will be disposed of by this common judgment.
2. In order to appreciate the facts, it is necessary to refer to the following genealogical table as given in the plaint:
UDAYNATH (Died in 1945)
| | | |
Kanhu Paramananda Brahmananda Valamukunda
=Padmabati (D.5) (died in 1954) (D.8)
(D.4) ____________|__________ |
| | | Jalati
| Brajakishore Sitaram (D.9)
| (D.6) (D.7)
| | | |
Brajkishore Pranakrushna Nirmani Sunamoni
(D.1) (D.2) (D.3)
3. Gurubari, the widow of Brahmananda filed Title Suit no. 39 of 1961 for partition of her share in the undivided joint family properties. Defendant No. 2 filed written statement claiming himself to be the adopted son of late Brahmananda. Defendants 1, 3 and 4 supported the claim of defendant No. 2. All these defendants pleaded pre-partition. On 5-12-1963 a preliminary decree for partition was passed on the finding that defendant No. 2 was not the adopted son of Brahmananda. On 13-8-1964 the plaintiff applied for making the decree final. During the pendency of the final decree proceedings the plaintiff died on 9-3-1972. On 17-4-1972 defendant No. 7 Sitaram Beura, who is the petitioner in these Civil Revisions, applied for being substituted in place of the deceased plaintiff claiming himself to be the son of the deceased plaintiff. On 25-4-1972 his prayer was allowed and he was substituted as plaintiff. On 10-5-1972 Sunamani Dei, the sister of defendant No. 2 Pranakrushna applied for being substituted in place of the original plaintiff claiming herself to be the adopted daughter of late Brahmananda. On 19-7-1972 the court recalled its previous order dated 25-4-1972 and directed that the name of Sitaram Beura standing in the position as sole plaintiff should be struck off and he should be allowed to remain as defendant No. 7 and further directed that an enquiry should be held under Order 22, Rule 5, Civil Procedure Code for determination of the question as to who is the legal representative of the deceased plaintiff Gurubari. At the enquiry, both Sitaram and Sunamani led evidence in support of their respective contentions. The court below after going into the matter at considerable length came to the conclusion that none of the rival claimants was adopted by late Brahmananda Beura and accordingly rejected the petitions for substitution filed by them. As none else came forward for being substituted in place of the deceased plaintiff the court directed that the final decree proceedings initiated upon the application of the deceased plaintiff should be dropped. It is against this order that Civil Revision No. 272 of 1974 has been filed. An application for re-view of the aforesaid order dated 15-12-1972 was rejected by order dated 27-6-1974 which is being challenged in Civil Revision No. 271 of 1974.
4. The main contention of the petitioner is that the court below had no jurisdiction to reopen the question of substitution and recall its previous order dated 25-4-1972 substituting the petitioner in place of the deceased plaintiff.
5. Rule 3 of Order 22 provides that where one of two or more plaintiffs die and the right to sue does not survive to the surviving plaintiff or plaintiffs alone, or a sole plaintiff or sole surviving plaintiff dies and the right to sue survives, the court, on an application made in that Behalf, shall cause the legal representative of the deceased plaintiff to be made a party and shall proceed with the suit.
Rule 5 of Order 22 provides:--
'Where a question arises as to whether any person is or is not the legal representative of a deceased plaintiff or a deceased defendant such question shall be determined by the Court.'
6. It is clear that Rule 3 applies only where there is no dispute as to who is the legal representative of the deceased party. But if a dispute is raised as to whether any person is or is not the legal representative of the deceased party it should be judicially determined by the Court under Rule 5. On a reference to the records, it is apparent that order dated 25-4-1972 was made under Order 22, Rule 3 and not under Order 22, Rule 5, Civil Procedure Code. The reasons for recalling the previous order dated 25-4-1972 and for directing an enquiry into the matter have been clearly stated in the Court's order dated 19-7-1972. It appears that though the petitioner was already on the record as defendant No. 7 and had been described as the son of Paramananda Beura he did not disclose these facts in his petition dated 17-4-1972. There was no indication in the petition that the petitioner had been adopted as a son bythe husband of the deceased plaintiff. It was merely stated that the original plaintiff had died on 7-3-1972 leaving behind the petitioner as the only son and legal heir and therefore, he was to be substituted as the sole plaintiff. Copy of the petition had also not been served on all the contesting defendants. Thus the order dated 25-4-1972 was passed on a wrong impression that notice of the petition for substitution had been given to all the parties. Defendant No. 1 who was one of the contesting defendants in the suit filed counter on 10-5-1972 opposing the petition dated 17-4-1972 on the ground that Sitaram was never adopted as a son by Brahmananda and that he (Defendant No. 1) had no notice of the petition for substitution filed by Sitaram. On account of the aforesaid, infirmities, the Court recalled its previous order dated 25-4-1972. By the date of the order no dispute had been raised as to who was the legal representative of the deceased plaintiff. All that was necessary at that stage was to bring on the record some persons who applied to be the legal representatives of the deceased so that the case may be proceeded with. There was no enquiry under Order 22, Rule 5, Civil Procedure Code and there was no judicial determination as to who was the legal representative of the deceased plaintiff. The petitioner misled the Court by suppressing the material facts and all the parties had no notice of the application for substitution. In my opinion, the order dated 25-4-1972 was made under Order 22, Rule 3, Civil Procedure Code and such an order could be recalled at a subsequent stage when a petition was filed by a rival claimant within the period of limitation. Since a dispute was raised the Court was bound to determine the question by an enquiry under Order 22, Rule 5, Civil Procedure Code. The Court had inherent power to recall the previous order when it was satisfied that it was made due to misrepresentation of facts and there was no notice to all the parties. This view finds sup-port from a Bench decision reported in ILR 43 Bom 168 = (AIR 1918 Bom 100) (Vatsalabai v. Sambhaji Pandurang). In that case one of the plaintiffs died during the pendency of the suit and an application was made by one G that he should be brought on the record as an adopted son of the deceased plaintiff. The Subordinate Judge granted the application and amended the record by substituting the name of G in place of the deceased plaintiff. Subsequently, the daughters of the deceased plaintiff applied that G's name should be deleted and their names should be brought on the record as G's adoption was fictitious. The Subordinate Judge held that he could not alter his previous order in view of Rule 3 of Order 22, Civil procedure Code. The High Court interfered on the ground that under Rule 5 of Order 22, Civil Procedure Code the Subordinate Judge had the power to correct the order previously made and to determine who were the real legal representatives of the deceased plaintiff. Their Lordships observed that it would be a very unfortunate reading of Rule 3, of Order 22, if it is held that once an order, though obviously a mistaken order, has been made, it is not in the power of the Court to correct it notwithstanding the provisions of Rule 5.
7. In support of his contention Mr. Ray, the learned counsel appearing for the petitioner, relied on AIR 1953 Trav Co 158 (Kali Pachi v. Ramalekshmi Ammal Muthammal) and AIR 1951 Pat 283 (Sheopujan Singh v. Chandi Singh). In the former case, plaintiff No. 1 died during the pendency of the suit and the additional plaintiffs 2 to 8 were impleaded as his legal representatives. The defendants questioned the status of the additional plaintiffs 2 to 8 by contending that they were not the legal representatives of the deceased plaintiff and that one Parvathi Ponnamma was the widow of the deceased plaintiff and herself and her children were the real legal representatives of the deceased plaintiff. The said Parvathi Ponnamma and her children had filed a separate petition praying that they may be substituted as the legal representatives of the deceased plaintiff. Thus they had entered into a contest with the additional plaintiffs 2 to 8 on the question as to who were the persons legally entitled to be brought on the record as the legal representatives of the deceased plaintiff. But these rival claimants later on withdrew from the contest and thereafter the suit proceeded with theadditional plaintiffs 2 to 8 on record as the legal representatives of the deceased plaintiff. In these circumstances it was held that an order passed with notice to the parties concerned and after hearing them cannot be allowed to be questioned by any of them at a subsequent stage of the suit.
In AIR 1951 Pat 283 the Subordinate Judge had made the previous order under Rule 5 of Order 22 since the dispute had already arisen as regards the proper persons to be substituted in place of the deceased. Subsequently some other persons applied for being substituted in place of the deceased plaintiff and the learned Subordinate Judge cancelled his previous order and allowed other persons to be substituted in place of the deceased. There was no allegation that the court was misled by any fraud practised upon it while passing its previous order. In these circumstances it was held that the Subordinate Judge had no jurisdiction to cancel his previous order of substitution.
The facts of these two cases are clearly distinguishable. In the present case the previous order was made under Order 22, Rule 3, Civil Procedure Code when there was no dispute as to who is the real heir and legal representative of the deceased and the order was made without notice to all the parties and there was suppression of facts by the petitioner. On the facts and circumstances of the case the learned Subordinate Judge was perfectly justified in recalling his previous order and holding an enquiry under Order 22, Rule 5, Civil Procedure Code. The contention raised on behalf of the petitioner is devoid of any force and it is accordingly overruled.
8. Now coming to the merits of the case it appears that during the enquiry the petitioner produced a registered deed executed by Gurubari, the original plaintiff, acknowledging the adoption. It is recited therein that Sitaram Beura, the present petitioner was adopted by Brahmananda about 8 or 9 years prior to the execution of the deed. It would thus appear that according to the petitioner his adoption took place prior to the institution of the present suit. But though he was impleaded as defendant No. 7 and was described in the plaint as the son of Paramananda Beura he did not file any written statement. If actually he had been adopted prior to the institution of the suit he would not have been described in the plaint as the son of Paramananda. Thecontesting defendants had filed written statement contending that defendant No. 2 Pranakrushna was the adopted son of Brahmananda and this plea was disbelieved by the trial Court. The deed of acknowledgment of adoption said to have been executed by Gurubari was not produced during the trial of the suit. The witness Balamukunda Behera gave evidence that the adoption of the petitioner took place 35 or 36 years prior to the execution of the deed of acknowledgment of adoption. In this state of evidence the learned Subordinate Judge was perfectly justified in disbelieving the evidence adduced by the petitioner. It is not shown that the learned Subordinate Judge committed any illegality or material irregularity or overlooked any relevant fact. The finding recorded by him is therefore unassailable.
9. I find no merit in both the Civil Revisions and dismiss the same, but in the circumstances without any order as to costs.