# Brijesh Kumar v. District Judge, Azamgarh and others

- **Citation:** (2009) 3 ILRA 798
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2009-09-02
- **Case number:** Civil Misc. Writ Petition No. 30302 of 1991
- **Bench:** Tarun Agarwala
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/brijesh-kumar-v-district-judge-azamgarh-and-others-41504
- **Pages:** 4

## Headnote

Code of Civil Procedure-Order XXII Rule
3-read
with
Section
2
(11)-Legal
Representative-during
pendency
of
execution proceeding arises out from
partition suit-plaintiff died-adopted son
moved application-rejection on ground
plaintiff being widow had limited rightscan not be touched by the execution
Court-except the regular Court-heldboth courts below committed great
illegality-can
not
sustain-execution
Court directed to allow the substitution
Application.

Held: Para 9

In the present case, the petitioner claims
to be the legal representative of the
deceased plaintiff. The petitioner, in my
opinion, falls within the definition of
"legal representative", as defined under
Section 2 (11) of the Code of Civil
Procedure. The court below committed
an
error
in
not
substituting
the
petitioner. It may be observed that by
substituting the petitioner, the title of
the petitioner over the property in
question
nor
the
claim
of
the
respondents that the property reverted
to the defendants pursuant to the Will is
being decided. These questions/claims of
the parties or the title over the property
in question could not be decided in a
proceeding under Order XXII, Rule 3 of
the
Code
of
Civil
Procedure.
Such
questions have to be gone into in regular
proceedings.

## Text

798 INDIAN LAW REPORTS ALLAHABAD SERIES [2009

during treatment on 10.05.2008. It is also
not disputed that information was given to
the complainant, who came with his
family members, who were present at the
time
of
inquest
proceedings
on
10.05.2008 and complainant, his brother
Devendra Kumar and daughter Priyanka
had signed inquest report (Annexure-6).
In the 'opinion of panch witnesses' (ray
panchan) endorsed at page 3 of the
inquest report, it is mentioned that the
deceased has died due to falling down
from roof. Therefore, having regard to all
these facts and keeping in view the
aforesaid submissions made by the
learned counsel for applicant, but without
expressing any opinion about merit of the
case, the applicant, who is confined in jail
for more than a year, may be released on
bail.

12. Let the applicant Brijesh Kumar
s/o Prem Kumar be released on bail in
Case Crime No 645 of 2008, under
sections 498A, 304-B IPC and Section 3/4
D.P. Act, P.S. Sungarhi, District Pilibhit
on his executing a personal bond for
Rs.40,000/- and furnishing two sureties
each in the like amount to the satisfaction
of the court concerned.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 02.09.2009

BEFORE
THE HON'BLE TARUN AGARWALA, J.

Civil Misc. Writ Petition No. 30302 of 1991

Brijesh Kumar

...Petitioner
Versus
District Judge and others ...Respondents

Counsel for the Petitioner:
Sri V.K.S. Chaudhary
Sri R.S. Maurya
Sri Kunal Ravi Singh

Counsel for the Respondents:
Sri,Sharad Malviya
Sri C.S. Singh
S.C.

Code of Civil Procedure-Order XXII Rule
3-read
with
Section
2
(11)-Legal
Representative-during
pendency
of
execution proceeding arises out from
partition suit-plaintiff died-adopted son
moved application-rejection on ground
plaintiff being widow had limited rightscan not be touched by the execution
Court-except the regular Court-heldboth courts below committed great
illegality-can
not
sustain-execution
Court directed to allow the substitution
Application.

Held: Para 9

In the present case, the petitioner claims
to be the legal representative of the
deceased plaintiff. The petitioner, in my
opinion, falls within the definition of
"legal representative", as defined under
Section 2 (11) of the Code of Civil
Procedure. The court below committed
an
error
in
not
substituting
the
petitioner. It may be observed that by
substituting the petitioner, the title of
the petitioner over the property in
question
nor
the
claim
of
the
respondents that the property reverted
to the defendants pursuant to the Will is
being decided. These questions/claims of
the parties or the title over the property
in question could not be decided in a
proceeding under Order XXII, Rule 3 of
the
Code
of
Civil
Procedure.
Such
questions have to be gone into in regular
proceedings.

(Delivered by Hon'ble Tarun Agarwala, J.)

1. Heard Shri Kunal Ravi Singh and
Shri Sharad Malviya, the learned counsel
for respondent.
3 All] Brijesh Kumar V. District Judge, Azamgarh and others

799
2. The plaintiff Smt Rambachchi
Devi instituted a suit for maintenance and
partition in respect of certain movable and
immovable
properties
against
the
defendants, who were the children of her
husband from the first wife. It was alleged
that the defendant No. 1 was not
maintaining her, and therefore, the suit
was instituted for the reliefs claimed by
her. The defendants contested the claim
and submitted that the plaintiff had only a
limited right under a Will dated 15th May,
1967 executed by the husband of the
plaintiff, and therefore, she was not
entitled either for maintenance or for
partition of the properties. The trial court,
after considering the material evidence on
record,
dismissed
the
suit
for
maintenance, but decreed the suit for
partition of the houses holding that the
plaintiff was entitled to 1/16th share. The
said decree became final and was not
challenged
by
the
defendants.
Consequently, the plaintiff filed an
application for the preparation of a final
decree. During the pendency of the
execution proceedings, the plaintiff died.
The petitioner, being the adopted son of
the plaintiff, by virtue of a registered
adoption deed, filed an application under
Order XXII, Rule 3 of the Code of Civil
Procedure
for
substitution.
This
application
was
opposed
by
the
defendants on the ground that the plaintiff
had a limited right in the property in
dispute in her life time under the Will,
and upon her death, the property devolved
upon the defendants, and therefore, the
petitioner
was
not
entitled
to
be
substituted. The executing court rejected
the application for substitution, against
which, the petitioner filed a revision
which was also dismissed. The petitioner,
being aggrieved by the said order, has
filed the present writ petition.
3. The ground for the rejection of
the substitution application by the courts
below, as culled out from the impugned
orders is, that the plaintiff had limited
rights in the property in question under
the Will executed by her husband and,
upon the death of the plaintiff, the
property devolved upon the defendant No.
1, who had become the sole owner of the
property in question, and therefore, the
petitioner
was
not
entitled
to
be
substituted as the legal representative of
the plaintiff.

4. Shri Sharad Malviya, the learned
counsel for the defendants contended that
since the plaintiff had a limited right
under the Will, the decree could not be
executed since the property had now
devolved upon the defendant No. 1 as per
the Will executed by the husband of the
plaintiff. The learned counsel further
submitted that the petitioner is the
adopted son and does not come under
Section 15 (2) (b) of the Hindu
Succession Act, and in the absence of any
natural heir of the plaintiff, the property
devolved upon the heirs of the husband of
the plaintiff.

5. Upon considering the matter, this
Court is of the opinion that the impugned
orders cannot be sustained and the
submission of the learned counsel for the
defendants does not hold any merit. At the
outset, from a perusal of the decree of the
trial court, the Court finds that the
property devolved upon the plaintiff
under the Will was not prayed for in the
suit filed for partition. A finding has been
given by the trial court that the property
involved in the suit was different from the
property involved under the Will. A
finding has been given that the property
involved under the Will had been left out
800 INDIAN LAW REPORTS ALLAHABAD SERIES [2009

by the plaintiff, and on that ground, the
trial court declined to grant a decree for
maintenance. In the light of this finding,
the finding of the executing court that the
plaintiff had a limited right in the property
in question is against the material
evidence and the said finding is based on
surmises and conjectures. The court
below, without examining as to whether
the property in the Will was the same as
the property claimed in the suit, has
rejected the substitution application.

6. There is another aspect of the
matter. The question whether the plaintiff
had a limited right or not under the Will
becomes
disputed
and
becomes
questionable in view of Section 14 of the
Hindu
Succession
Act,
which
contemplates that a property possessed by
a female Hindu becomes absolute.

7. Further, while dealing with the
application under Order XXII of the Code
of Civil Procedure, the Courts are not
required to delve into the question of title.
The Court is only required to see whether
the person sought to be substituted has
any right or whether he is the legal
representative of the heirs, as defined
under Section 2 (11) of the Code of Civil
Procedure. In my opinion, the legal
representative, as defined in the Code of
Civil Procedure has a wide meaning
which also includes inter meddlers.

8. In the present case, the petitioner
claims to be a legal representative on the
basis of a registered adoption deed. Order
XXII, Rule 3 of the Code of Civil
Procedure lays down that where the
plaintiff dies and the right to sue survives,
in that event, the court, on an application
made on that behalf, shall cause the legal
representative of the deceased plaintiff to
be made a party, and consequently,
proceed with the suit.

9. In the present case, the petitioner
claims to be the legal representative of the
deceased plaintiff. The petitioner, in my
opinion, falls within the definition of
"legal representative", as defined under
Section 2 (11) of the Code of Civil
Procedure. The court below committed an
error in not substituting the petitioner. It
may be observed that by substituting the
petitioner, the title of the petitioner over
the property in question nor the claim of
the respondents that the property reverted
to the defendants pursuant to the Will is
being decided. These questions/claims of
the parties or the title over the property in
question could not be decided in a
proceeding under Order XXII, Rule 3 of
the Code of Civil Procedure. Such
questions have to be gone into in regular
proceedings.

10. In view of the aforesaid, the
impugned orders cannot be sustained and
are quashed. The writ petition is allowed.
The substitution application is liable to be
allowed.
The
executing
court
is
consequently directed to pass a formal
order
allowing
the
substitution
application. The executing court is also
directed to proceed with the case and
decide the matter at the earliest.
---------
3 All] Naeem Ahmad V. State of U.P. and others

801
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 18.09.2009

BEFORE
THE HON'BLE A.P. SAHI, J.

Civil Misc. Writ Petition No. 407 of 2005

Naeem Ahmad

 ...Petitioner
Versus
State of U.P. & others ...Respondents

Counsel for the Petitioner:
Sri R.K. Pandey

Counsel for the Respondents:
Sri C.P. Mishra
S.C.

Constitution
of
India
Article-226-
Cancellation of the licence of fair price
shop on ground-father of petitioner
already
running
fair
price
shop
prohibition contained in clause 10 (e) of
G.O. 28.10.82 directly comes-theory of
separation
from
family
set
-up-not
reliable-held-cancellation proper.

Held: Para-10

Having found so, the petitioner therefore
suffers from a disqualification under the
Government Order dated 28.10.2002 and
he could not have been granted a
license. This being the position, it is not
necessary to enter into the merits of the
other charges against the petitioner, and
his explanation in that respect.
Case law discussed:
1982(2) SCC 210

(Delivered by Hon'ble A.P. Sahi, J.)

1. The short question raised in this
petition is, as to whether the SubDivisional
Magistrate
was
right
in
canceling the license to run a fair price
shop issued in favour of the petitioner, as
affirmed by the Commissioner in appeal
under
the
provisions
of
the
U.P.
Scheduled
Commodities
Distribution
Order, 2004 read with the Government
Order dated 28.10.2002.

2. The petitioner was granted a
license to run a fair price shop under the
Government Order dated 28.10.2002,
which was then prevalent, in the year
2003. This was done according to the
petitioner under a valid resolution of the
Gram Sabha to run the shop at Village
Houspura within Gram Panchayat Sainjni.
Charges of maldistribution were brought
against him coupled with the charge of
having concealed the fact that his father,
Mohd. Sayeed, was already a license
holder of a fair price shop at village
Sainjni which disqualifies the petitioner
for a license under Clause 10(e) of the
Government Order dated 28.10.2002.

3. An enquiry was conducted with
opportunity to the petitioner who, apart
from defending the charges on the ground
of improper procedure adopted during
enquiry, went on to urge that since he was
living separately from his father, he did
not inhere any such disqualification as
alleged aforesaid. It was also contended
by the petitioner in his reply that the
documents which he wanted to support
his stand with, were lost on his way to the
Sub-Divisional
Magistrate's
office.
Relying on the extract of the family
register of Village Juldhakiya, Gram
Sabha Sainjni, Nyaya Panchayat Dilari,
Tehsil Thakurdwara, District Moradabad,
it was pleaded that the petitioner's family
has been shown separately from that of
his father and as such it is urged that the
conclusions drawn by the Sub-Divisional
Magistrate
as
affirmed
by
the
Commissioner are erroneous. In short,