Heard learned counsel for the petitioner.
In view of the facts of the case and the order proposed to be passed hereunder, the respondents are not being put to notice and their right to seek clarification/variation/modification in the order, in case they feel aggrieved, is being kept reserved.
Facts are that one Ram Lakhan filed suit claiming mandatory injunction directing the defendants to remove the construction from the suit property. Trial court vide judgement and decree dated 21.3.1983 dismissed the suit. Plaintiff Ram Lakhan went up in appeal. During the pendency of the appeal Ram Lakhan died on 18.3.1997. Petitioner as well as respondents no. 1 to 4 moved an application for being substituted in his place as his heirs and legal representatives. Both of them were claiming to be the legatee of the will alleged to have been executed in their favour. The appellate court remitted the matter back to the trial court for making an inquiry under Order XXII Rule 5 of the C.P.C. for determination of the question as to who was the legal representative. Trial court finding that the will set up by the petitioner as well as respondents no. 1 to 4 was not genuine. However, the trial court further held that respondents no. 1 to 4 being the nephews of deceased Ram Lakhan are heirs under the ScheduleII of Section 8 of Hindu Succession Act, 1956. After recording the finding, the trial court passed the orders directing that the respondents no. 1 to 4 be substituted in the plaint in place of Ram Lakhan and the necessary steps be taken within 14 days and thereafter, the record be returned to the appellate court. The order passed by the trial court was challenged in revision which was dismissed as not maintainable being directed against an interlocutory order.
It has been contended by Sri B.N.Agrawal, learned counsel for the petitioner that in view of proviso of Order XXII Rule 5 of the C.P.C., the trial court was only required to try the question and to return the record together with evidence and its finding and reason therefor to the appellate court, who is empowered to determine the question after taking into consideration the findings and reasons of the trial court but the trial court exceeded in its jurisdiction in recording operative portion of the order directing the respondents no. 1 to 4 to be substituted in place of deceased Ram Lakhan in the plaint. I have considered the argument advanced by learned counsel for the petitioner and perused the record.
Order 22 Rule 5 of the C.P.C. provides as under :
"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 defendant, 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 therefor, and the Appellate Court may take the same into consideration in determining the question].
A plain reading of the provision goes to show that the trial court is only required to record its finding and reason and remit the same to the appellate court to decide the question and it was not within its competence to pass order for substitution.
In view of the above, there appears to be force in the submission of the learned counsel for the petitioner that the trial court has exceeded its jurisdiction.
Considering the facts and circumstances of the case, the direction issued by the trial court to carry out substitution in the plaint is set aside, and the order dated 28.2.2009 passed by the trial court shall only be treated as finding recorded under Order XXII Rule 5 of the C.P.C. and the appellate court shall proceed to determine the question after taking into consideration the findings returned by the trial court.
Subject to aforesaid, the writ petition stands finally disposed of.
Order Date :- 4.2.2010 nd