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Ram Parkash and anr. Vs. Smt. Shamkari and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtPunjab and Haryana High Court
Decided On
Case NumberCivil Revn. No. 660 of 1966 and Civil Misc No. 2933 of 1967
Judge
Reported inAIR1968P& H293
ActsCode of Civil Procedure (CPC) , 1908 - Order 22, Rule 5
AppellantRam Parkash and anr.
RespondentSmt. Shamkari and ors.
Appellant Advocate H.S. Gujral, Adv.
Respondent Advocate S.K. Jain, Adv.
DispositionRevision petition accepted
Excerpt:
.....finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. amended section 100-a of the code clearly stipulates that where any appeal from an original or appellate decree or order is heard and decided by a single judge of a high court, no further appeal shall lie. even otherwise, the word judgment as defined under section 2(9) means a statement given by a judge on the grounds of a decree or order. thus the contention that against an order passed by a single judge in an appeal filed under section 104 c.p.c., a further appeal lies to a division bench cannot be accepted. the newly incorporated section 100a in clear and specific terms prohibits further appeal against the decree and judgment or order of a single judge..........application under order 22, rule 3 of the code of civil procedure for being impleaded as the sole legal representatives of the deceased on the basis of a registered will alleged to have been made in their favour by bhagat ram. similarly, smt. shankari, daughter of the deceased, also applied for this very purpose. the question, therefore, arose as to who was the real legal representative of bhagat ram and that largely depended on the validity of the alleged will. the trial judge, instead of determining this question, directed on 14-2-1966 that all the applicants, namely, ram parkash, mehanga ram and smt. shankari be brought on the record as the legal representatives of the deceased. in the said order, he proceeded to say -- ' .. this order will in no way prejudice the validity of the.....
Judgment:

P.C. Pandit, J.

1. Bhagat Ram and his brother, Munshi Ram, brought a suit against Roshan Lal and others for the issue of a permanent injunction restraining the defendants from constructing some building on the land in dispute and interfering in any way with the possession of the plaintiffs regarding the said land. During the pendency of the suit, one of the plaintiff, namely, Bhagat Ram, died. Thereupon, Mehanga Ram and Ram Parkash made an application under Order 22, Rule 3 of the Code of Civil Procedure for being impleaded as the sole legal representatives of the deceased on the basis of a registered will alleged to have been made in their favour by Bhagat Ram. Similarly, Smt. Shankari, daughter of the deceased, also applied for this very purpose. The question, therefore, arose as to who was the real legal representative of Bhagat Ram and that largely depended on the validity of the alleged will. The trial Judge, instead of determining this question, directed on 14-2-1966 that all the applicants, namely, Ram Parkash, Mehanga Ram and Smt. Shankari be brought on the record as the legal representatives of the deceased. In the said order, he proceeded to say -- ' .. this order will in no way prejudice the validity of the will in question nor to the question of real heir to the deceased which is open between applicants to contest'. After having passed this order, the learned Judge made another order on the same date to the effect that the said three applicants be impleaded as the legal representatives of Bhagat Ram 'for the purpose of this suit'. He further directed the parties to produce evidence in the suit. Against both these orders dated 14-2-1966, the present revision petition has been filed by Ram Parkash and Mehanga Ram.

2. It was contended by the counsel for the petitioners that the learned trial Judge had erred in impleading all the three applicants as the legal representatives of Bhagat Bam, deceased without first deciding as to who in fact was the true legal representative of the deceased.

3. After hearing the counsel for the parties, I am of the view that this contention must prevail. Order 22, Rule 5 of the Code of Civil Procedure reads:--

'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'.

4. A bare reading of this provision would show that when a dispute arises as to who is the legal representative of a deceased plaintiff or defendant, that question has to be determined by the Court. It is obvious that this question should be determined by the Court before proceeding further with the suit. The Court cannot absolve itself from the duty cast on it by the statute in this behalf by resorting to the practice of impleading all the alleged legal representatives and leaving that matter to be decided in a separate suit. Such a course is not warranted by the language employed in this rule. Besides, it would not be proper that after the suit is decided, the plaintiff, who may be one of the persons claiming to be the legal representatives of the deceased, should not be able to reap the fruits of the decree, if ultimately in the separate suit, he or she is not held to be the real legal representative.

5. I would, therefore, accept this revision petition, set aside both the impugned orders dated 14-2-1966 and remit the case to the trial Judge with the direction that he should decide this matter before proceeding further with the suit. The parties have been directed to appear before the trial Court on 9-10-1967. There will be no order as to costs.

6. It may be mentioned that during thependency of this revision petition in this Court,an application was made by the petitioners on30th of August 1967 that Munshi Ram, theother plaintiff, had also died on 10th of March,1967, leaving behind the petitioners as his solelegal representatives. It was said that thedeceased had also left a will in their favourbequeathing his entire property to them to theexclusion of all others including his daughterSmt. Vidya. The learned trial Judge will dispose of this matter as well, after issuing a noticeto Smt. Vidya and the opposite party.


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