# Hari Mohan Sharma v. Goverdhan Dutta & Ors

- **Citation:** (2022) 4 ILRA 1297
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-12-06
- **Case number:** Matters U/A 227 No. 3015 of 2018
- **Bench:** Ajit Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/hari-mohan-sharma-v-goverdhan-dutta-ors-47605
- **Pages:** 10

## Headnote

Civil Law - Code of Civil Procedure-Order
XXII Rule 5 - Parties impleaded by the Trial
court-challenged-since no proprietory right in
the estate of deceased would be determinedunder Order XXII Rule 5-allowing substitution -
hardly affect the merit of suit-impugned order
affirmed.
1298 INDIAN LAW REPORTS ALLAHABAD SERIES
Petition dismissed. (E-9)
List of Cases cited:

## Text

4 All. Hari Mohan Sharma Vs. Goverdhan Dutta & Ors.
1297
expression" State Government" occurring
therein,
the
expression"
Central
Government" were substituted.]

(2) No Court shall take cognizance
of any offence alleged to have been committed
by any member of the Armed Forces of the
Union while acting or purporting to act in the
discharge of his official duty, except with the
previous sanction of the Central Government.

(3) The State Government may, by
notification, direct that the provisions of sub-
section (2) shall apply to such class or
category of the members of the Forces
charged with the maintenance of public order
as may be specified therein, wherever they
may be serving, and thereupon the provisions
of that sub- section will apply as if for the
expression" Central Government" occurring
therein, the expression" State Government"
were substituted.

[(3A)
Notwithstanding
anything
contained in sub- section (3), no court shall
take cognizance of any offence, alleged to have
been committed by any member of the Forces
charged with the maintenance of public order
in a State while acting or purporting to act in
the discharge of his official duty during the
period while a Proclamation issued under
clause (1) of article 356 of the Constitution
was in force therein, except with the previous
sanction of the Central Government.]

[(3B) Notwithstanding anything to
the contrary contained in this Code or any
other law, it is hereby declared that any
sanction accorded by the State Government or
any cognizance taken by a court upon such
sanction, during the period commencing on
the 20th day of August, 1991 and ending with
the date immediately preceding the date on
which the Code of Criminal Procedure
(Amendment) Act, 1991 , receives the assent of
the President, with respect to an offence
alleged to have been committed during the
period while a Proclamation issued under
clause (1) of article 356 of the Constitution
was in force in the State, shall be invalid and it
shall
be
competent
for
the
Central
Government in such matter to accord sanction
and for the court to take cognizance thereon.]

(4) The Central Government or the
State Government, as the case may be, may
determine the person by whom, the manner in
which, and the offence or offences for which,
the prosecution of such Judge, Magistrate or
public servant is to be conducted, and may
specify the Court before which the trial is to be
held."

10. In above circumstances, this Court is
not inclined to interfere in the impugned order.

11. The petition under Article 227 of the
Constitution of India is dismissed, accordingly.
----------
(2022)04ILR A1297
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 06.12.2021

BEFORE

THE HON'BLE AJIT KUMAR, J.

Matters U/A 227 No. 3015 of 2018

Hari Mohan Sharma ...Petitioner
Versus
Goverdhan Dutta & Ors. ...Respondents

Counsel for the Petitioner:
Sri Anshul Kumar Singhal

Counsel for the Respondents:
Sri Shyam Sunder Sharma

Civil Law - Code of Civil Procedure-Order
XXII Rule 5 - Parties impleaded by the Trial
court-challenged-since no proprietory right in
the estate of deceased would be determinedunder Order XXII Rule 5-allowing substitution -
hardly affect the merit of suit-impugned order
affirmed.
1298 INDIAN LAW REPORTS ALLAHABAD SERIES
Petition dismissed. (E-9)
List of Cases cited:
1. Mohinder Kaur & anr. Vs Piara Singh & ors. of
Punjab & Haryana Court

2. Chiragh Din Vs Dhlawar Khan AIR 1934 Lah
465

3. Mahomed Khan Vs Jan Mohammad, AIR 1939
Lah 580

4. Daular Ram Vs Mt. Meero, AIR 1941 Lah 142

5. Raj Bahadur Vs Narayan Prasad, AIR 1926 All
349

6. Jai Narain Vs Ram Deo AIR 1933 Oudh 207

7. Dashrath Rao 14 of 17 Kate Vs Brij Mohan
Srivastava, (2010) 1 SCC 277
(Delivered by Hon'ble Ajit Kumar, J.)

1. Heard Shri Anshul Kumar Singhal,
learned counsel for the petitioner and Shri
Shyam Sunder Sharma, learned counsel for
the respondents.

2. By means of this petition under
Article 227 of the Constitution, the
petitioner seeks to set aside the order dated
13.01.2015 passed by the Additional Civil
Judge (Senior Division), Mathura in
Original Suit No. 173 of 1982 and the
connected Original Suit No. 254 of 1982
and also the order dated 13.02.2018 passed
by the Additional District Judge, Court No.
8, Mathura in Civil Revision No. 64 of
2015.

3. The controversy involved in the
present case arises for the two sets of legal
heirs of late Goverdhan Dutt claiming to
substitute Goverdhan Dutt in the connected
suit proceedings. While Original Suit No.
173 of 1982 was instituted by the present
petitioner seeking permanent prohibitory
injunction
against
Goverdhan
Dutt,
Goverdhan Dutt also instituted a suit being
Original Suit No. 254 of 1982 against the
present petitioner seeking the relief in the
nature of mandatory injunction and a
consequential relief for restoration of
possession of the suit land. Both the above
suits came to be connected for the purposes
of adjudication and disposal.

4. It is during the pendency of above
suit proceedings, Goverdhan Dutt died.
While Smt. Babli @ Chitra, daughter of
one Jai Prakash Hada was claimed by the
present petitioner, to be legal heir of late
Goverdhan Dutt as grand daughter of late
Goverdhan Dutt, in the suit filed by late
Goverdhan Dutt being Original Suit No.
254 of 1982, the respondent nos. 2, 3 & 4
herein in this petition, filed an application
seeking
substitution/
impleadment
to
continue the suit proceedings as heirs and
legal representatives of late Goverdhan
Dutt. The objections were filed by the l
respective parties qua two substitution
applications.

5. The trial court in its judgment
found it to be appropriate to allow both the
rival parties to be parties in the suits as
legal representatives of Goverdhan Dutt for
the purposes of continuation of suit
proceedings instead of adjudicating the
issue of right of the parties to be substituted
exclusively as heir/legal representative of
late Goverdhan Dutt. Against the said
order, revision was filed by the present
petitioner which also came to be dismissed.

6. Learned counsel for the petitioner
submitted that it was a duty cast upon the
court to determine the issue of legal right to
be heir/ legal representative of a party in the
event of dispute being raised, under Order
4 All. Hari Mohan Sharma Vs. Goverdhan Dutta & Ors.
1299
XXII Rule 5 of Code of Civil Procedure,
1908 (in short ''CPC') as it provides for the
same. Learned counsel for the petitioner
argued that determination of rights of a
person to be heir/ legal representative of a
deceased party in the suit, can be very well
determined by permitting the parties to lead
evidence in support thereof. He submits that
the proviso to Rule 5 of Order XXII CPC is
clearly of indicative of the intendment of
legislature that the court concerned should
decide the controversy of heir-ship, if any
raised and, therefore, according to him the
trial court was not justified in allowing the
substitution application of both the claimants
to substitute the deceased defendant in one
suit and as plaintiff in another connected suit.
According to learned counsel for the
petitioner, the legal principles had been
wrongly interpreted by the trial court. He also
submitted that the court revising the order of
trial court, simply confirmed the order
without recording any independent finding on
the question as to legal representative, as
mandated Order XXII Rule 5 CPC.

7. Per contra, it has been submitted
by learned counsel for the respondents that
the legal position was that any application
in suit or appeal by a party to substitute the
deceased in a suit or appeal for that matter,
was only for the purposes of adjudication
of the case, meaning thereby, the suit
proceedings were to be brought to their
logical end and were not to be lingered on
for technical pleas as to who would be the
right person to substitute the deceased
party. He submited that the rival parties
claiming
to be
rightful heirs/
legal
representatives could draw any declaratory
decree qua proprietary right in the suit
property in appropriate proceedings.

8. Having heard learned counsel for
the respective parties and their respective
arguments raised across the bar and having
gone through the pleadings so raised, I find
that the discretion exercised by the trial
court confirmed in revision, has to be
looked into, whether right or wrong, in the
backdrop of the plaint case of the
respective parties and the consequential
proceedings drawn.

9. I find that petitioner was seeking
injunction in the nature of permanent
prohibitory
injunction,
whereas,
late
Goverdhan Dutt had instituted the suit
seeking mandatory injunction and recovery
of possession. Thus the suits that have been
connected, the pleas taken were for
injunction
and
mandatory
injunction
respectively.

10. The petitioner before this Court
has filed a suit in the nature of permanent
prohibitory injunction. If he wants to
injunct a party, it would be his choice to
implead that party, if in his choice Chitra
Jaiswal is the only heir of late Goverdhan
Dutt and she should be injuncted, it does
not bind the rival heirs if they are not
impleaded or substituted. Similarly if
injunction is also granted against further
three persons who are claiming to be heirs
of late Goverdhan Dutt, it does not in any
manner affects the right of
present
petitioner rather helps him out in getting
the decree of injunction purposefully
executable and therefore, for the purpose of
continuation of O.S. No. 173 of 1982 if
both the rival legal representatives of late
Goverdhan
Dutt
are
impleaded,
no
prejudice would be caused to the present
petitioner.

11. Again in the suit filed by Goverdhan
Dutt, it could not be a concern of the
petitioner as to who steps into the shows of
plaintiff of that case because the petitioner is
1300 INDIAN LAW REPORTS ALLAHABAD SERIES
the defendant and a suit of mandatory
injunction would be decreed only in the event
petitioner fails to prove his case for
prohibitory injunction as owner in possession
of the suit land. As far as the proprietary right
in respect of a particular property left by
Goverdhan Dutt is concerned that would be
determinable in the event petitioner loses his
suit and then the lis could be between the two
rival sets claiming to be the heir of late
Goverdhan
Dutt
in
appropriate
suit
proceedings.

12. Argument that has been very
vehemently pressed before me by learned
council
for
the
petitioner
was
that
adjudication as provided rule 5 of order XXII
CPC was a must to finally adjudicate the heirship.

13. In my view the legal position qua
heir-ship to the estate of a deceased is quite
different from the right to consider for
continuation of a suit proceeding as legal heir
of a deceased party in such out. The issue is
no more res integra but I find it to be a fit
case to refresh the already settled legal
position.

14. For appreciating the legal principle
the relevant provision of order XXII of CPC
is reproduced hereunder in its entirety:

"ORDER XXII

DEATH,
MARRIAGE
AND
INSOLVENCY OF PARTIES

1. No abatement by party's
death, if right to sue survives.--The death of
a plaintiff or defendant shall not cause the suit
to abate if the right to sue survives

"or to proceedings in the original
Court taken after the passing of the
preliminary decree where a final decree also
requires to be passed having regard to the
nature of the suit."

(Allahabad amendment)

2. Procedure where one of
several plaintiffs or defendants dies and
right to sue survives--Where there are
more plaintiffs or defendants than one, and
any of them dies, and where the right to
sue survives to the surviving plaintiff or
plaintiffs alone, or against the surviving
defendant or defendants alone, the Court
shall cause an entry to the effect to be
made on the record, and the suit shall
proceed at the instance of the surviving
plaintiff or plaintiffs, or against the
surviving defendant or defendants.

3. Procedure in case of death of
one of several plaintiff or of sole
plaintiff.-- (1) Where one of two or more
plaintiffs dies 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 the
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.

(2) Where within the time limited
by law no application is made under subrule (1), the suit shall abate so far as the
deceased plaintiff is concerned, and, on the
application of the defendant, the Court may
award to him the costs which he may have
incurred in defending the suit, to be
recovered from the estate of the deceased
plaintiff.

4. Procedure in case of death of
one of several defendants or of sole
defendant.-- (1) Where one of two or more
defendants dies and the right to sue does
not
survive
against
the
surviving
defendant or defendants alone, or a sole
defendant or sole surviving defendant dies
and the right to sue survives the Court, on
an application made in that behalf, shall
cause the legal representative of the
4 All. Hari Mohan Sharma Vs. Goverdhan Dutta & Ors.
1301
deceased defendant to be made a part and
shall proceed with the suit.

(2) Any person so made a party
may make any defence appropriate to his
character as legal representative of the
deceased defendant.

(3) Where within the time limited
by law no application is made under subrule (1), the suit shall abate as against the
deceased defendant.

[(4) The Court whenever it thinks
fit, may exempt the plaintiff from the
necessity
of
substituting
the
legal
representatives of. any such defendant who
has failed to file a written statement or
who, having filed it, has failed to appear
and contest the suit at the hearing; and
judgment may. in such case, be pronounced
against the said defendant notwithstanding
the death of such defendant and shall have
the same force and effect as if it has been
pronounced before death took place.

(5) Where--

(a) the plaintiff was ignorant of
the death of a defendant, and could not, for
that reason, make an application for the
substitution of the legal representative of
the defendant under this rule within the
period specified in the Limitation Act, 1963
(36 of 1963), and the suit has, in
consequence, abated, and

(b) the plaintiff applies after the
expiry of the period specified therefore in
the Limitation Act, 1963 (36 of 1963), for
setting aside the abatement and also for the
admission of that application under section
5 of that Act on the ground that he had, by
reason of such ignorance, sufficient cause
for not making the application within the
period specified in the said Act, the Court
shall, in considering the application under
the said section 5, have due regard to the
fact of such ignorance, if proved.]

4-A. Procedure where there is
no legal representative.- (1) If, in any suit,
it shall appear to the Court that any party
who has died during the pendency of the
suit has no legal representative, the Court
may, on the application of any party to the
suit, proceed in the absence of a person
representing the estate of the deceased
person, or may by order appoint the
Administrator-General, or an officer of the
Court or such other person as it thinks fit to
represent the estate of the deceased person
for the purpose of the suit; and any
judgment or order subsequently given or
made in the suit shall bind the estate of the
deceased person to the same extent as he
would have been bound if a personal
representative of the deceased person had
been a party to the suit.

(2) Before making an order under
this rule, the Court-

(a) may require notice of the
application for the order to be given to such
(if any) of the persons having an interest in
the estate of the deceased person as it
thinks fit; and

(b) shall ascertain that the person
proposed to be appointed to represent the
estate of the deceased person is willing to
be so appointed and has no interest adverse
to that of the deceased person.

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 sob-ordinate 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.]
1302 INDIAN LAW REPORTS ALLAHABAD SERIES

(Emphasis added)

15. Upon bare reading of the rule 1 it
is clear that the suit would not abate
automatically in the event of a death of
either of the parties thereto and so also any
of the proceedings undertaken by the
original
court
as
a
consequence
of
preliminary decree where final decree is
must if rights to sue survives.

16. Rule 2 provides for a procedure
where one of the plaintiffs or defendants
dies and right to sue survives. The rule
provides that in the event of more than one
plaintiffs or the defendants, as the case may
be, and right to sue survives with the other
remaining parties, the court shall make an
entry accordingly and proceed with the suit.

17. Rule 3 provides for substitution in
case of the death of one of the several
plaintiffs or sole plaintiff. The rule provides
for the court to cause legal representative of
the deceased plaintiff to be made as a party
and shall proceed with the suit in the event
right to sue survives. Sub rule (2) of Rule 3
provides for abatement as against the
deceased plaintiff if no application for
substitution is filed within prescribed
period of limitation and the court can also
award cost to the defendants to be
recovered from the estate of deceased
plaintiff.

18. Similar is the provision contained
under rule 4(1) and the court shall proceed
with the suit. However, sub rule (2) gives
an opportunity to a legal representative to
make a defence also appropriate to his
character as such. Sub rule (3) provides for
abatement against the deceased defendant
as well and sub rule 2 of Rule 3 is that no
application is necessarily required for
abatement in the event of death of the
defendant. So the abatement is by fiction of
law.

19. Sub rule (4) further vests right
with the plaintiff not to substitute the legal
representatives of a defendant who failed to
submit any written statement or even if
submitted, he failed to appear and contest
the suit at the hearing and in such event
even the judgment may be pronounced
against the deceased defendant and the
same will be having the same force as if the
defendant had not died. Sub rule (5)(a)
prescribes the limitation period for the
plaintiff to file substitution application,
whereas, sub rule 5(b) provides for setting
aside the abatement and admission of
belated substitution application with the aid
of section 5 of Indian Limitation Act, 1963.

20. Rule 4(A) provides an opportunity
for the court to appoint Administrator
General or any officer of the court or such
other person as would be just and proper in
its discretion, to represent the estate of
deceased person who was party to the suit
and is not survived by any heir or legal
representative for the purpose of suit only
and the judgment of the suit shall bind the
estate of such deceased person. Sub rule (2)
of rule 4(A) shall ensure that a notice given
to a person to represent the estate of
deceased person, if willing to be so
appointed and has no interest adverse to
that of the deceased.

21. Rule 5 of Order XXII provides for
determination of question as to whether a
person is or is not entitled to be held legal
representative of deceased plaintiff or
deceased defendant. Proviso to rule 5
provides that in the event such a situation
arises in an appeal, the court before
determining that question, may direct the
subordinate court to try such question and
4 All. Hari Mohan Sharma Vs. Goverdhan Dutta & Ors.
1303
return the record with evidence determining
right of a person to be legal representative
and then the appellate court may take the
same into consideration in determining the
question.

22. The provisions as contained in
different rules and their respective sub rules
of order XXII indicate four undisputed
principles on the issue of substitution of a
deceased plaintiff or defendant:

(a). If the right to sue survives
then for the purposes of orderly conduct of
the suit proceedings, the court will cause
legal
representative
to
substitute
the
original party on either side as the case may
be, as there should be no abatement in such
circumstances;

(b). In case of death of plaintiff/
plaintiffs or defendant/ defendants and in
the event substitution is not filed within the
limitation prescribed under the Indian
Limitation Act, 1963, the abatement of suit
proceedings as against such deceased party
is
automatic
and
therefore,
if
the
substitution is filed belatedly, the plaintiff
shall have to apply for setting aside the
abatement as well;

(c). The parties to the suit have a
right
to
apply
for
appointment
of
Administrator General or any other officer
of the court or any such other person to
represent the estate of the deceased if the
cause is still surviving, to be appointed in
the discretion of the court concerned; and

(d). when a question arises as to
who can be held to be legal representatives
of a deceased party to the suit, then such
question shall be determined by the court of
first instance. In case of appeal the
appellate court though shall have to
determine the question itself but may ask
for the trial court to return findings after
evaluation of evidence qua right of the
party
to
be
impleaded
as
legal
representative of the deceased party in the
suit.

23. So the analogy would be that suit
should not abate, if the right to sue survives
and the parties to the suit even if die, the
court shall cause their representatives to be
recorded and shall proceed to conclude the
suit proceedings and in the event of dispute
it is also determinable as to right to be
recorded as a legal representative.

24. This above analogy leads to only
one conclusion that the legislature intended
for a suit once instituted to be brought to its
logical end and for the technicalities of the
death of either of the parties in the event
right
to
sue
survives,
the
legal
representative be brought on record so as to
achieve the end result i.e. conclusion of the
suit proceedings with the adjudication of
lis. This means that even a determination
under rule 5 is aimed at achieving the
above end result and not beyond that.

25. Thus, while a legal representative
to be brought on record to protect the estate
of deceased it is only limited to the right to
that extent and continuation of suit
proceedings. Whether a person gets an
enforceable right in the estate of a
deceased, meaning thereby the proprietary
rights, that being not an issue in the suit the
question would be how far such a decision
would if adjudicated, will have binding
force in case if suit is brought claiming
right to the estate of the deceased. Right to
property is between plaintiff and the
defendant only and right to sue being
limited to that extent and if any proprietary
right is claimed by legal representatives, in
my considered view, such a party will have
to seek a remedy otherwise available in
common law and even if there is
1304 INDIAN LAW REPORTS ALLAHABAD SERIES
adjudication under rule 5, it will not
operate as res judicata in such subsequent
suit.

26. In my above view, I find support
from the judgment in the case of Mohinder
Kaur & Anr v. Piara Singh & Ors of Punjab
and Haryana Court in which an argument
was advanced by learned Advocate that the
view taken by the Lahore High Court in the
case if Chiragh Din v. Dhlawar Khan AIR
1934 Lah 465; Mahomed Khan v. Jan
Mohammad, AIR 1939 Lah 580 and Daular
Ram v. Mt. Meero, AIR 1941 Lah 142 that
the decision under Order XXII Rule 5 of
CPC would not operate as res-judicata in a
subsequent suit for succession or heirship
of the deceased party, was no more a good
law and in support of his argument, learned
Advocate in that case had relied upon a
judgment of Allahabad High Court in Raj
Bahadur v. Narayan Prasad, AIR 1926 All
349 and one Jai Narain v. Ram Deo AIR
1933 Oudh 207. The High Court rejected
the argument and held that the inquiry
under rule 5 of Order XXII to be only
summary in nature and thus vide para 9
held thus:

"9. We are, therefore, of the
opinion that in essence a decision under
Order 22, Rule 5, Civil Procedure Code, is
only directed to answer an orderly conduct
of the proceedings with a view to avoid the
delay in the final decision of the suit till the
persons claiming to be the representatives
of the deceased party get the question of
succession settled through a different suit
and such a decision does not put an end to
the litigation in that regard. It also does not
determine any of the issues in controversy
in the suit. Besides this it is obvious that
such a proceeding is of a very summary
nature against the result of which no
appeal is provided for. The grant of an
opportunity to lead some sort of evidence in
support of the claim of being a legal
representative of the deceased party would
not in any manner change the nature of the
proceeding, In the instant case the brevity
of the order (reproduced above) with which
the report submitted by the trial Court after
enquiry submitted by the trial Court after
enquiry into the matter was accepted, is a
clear
pointer
to
the
fact
that
the
proceedings resorted to were treated to be
of a very summary nature. It is thus
manifest that the Civil Procedure Code
proceeds upon the view of not imparting
any finality to the determination of the
question of succession r heirship of the
deceased party."

27. This above view of the Punjab and
Haryana High Court and the subsequent
decision of the Allahabad High Court
overruling Raj Narayan (supra) finds
favour in the judgment of Supreme Court in
Dashrath
Rao
Kate
v.
Brij
Mohan
Srivastava, (2010) 1 SCC 277 and vide
paragraph nos. 16 and 17, the court held
thus:

"16. As a legal position, it cannot
be disputed that normally, an enquiry under
Order 22 Rule 5, CPC is of a summary
nature and findings therein cannot amount
to res judicata, however, that legal position
is true only in respect of those parties, who
set up a rival claim against the legatee. For
example, here, there were two other
persons, they being Ramesh and Arun Kate,
who were joined in the Civil Revision as the
legal representatives of Sukhiabai. The
finding on the Will in the order dated
9.9.1997 passed by the Trial Court could
not become final as against them or for that
matter, anybody else, claiming a rival title
to the property, vis-`- vis, the appellant
herein, and, therefore, to that extent, the
4 All. Hari Mohan Sharma Vs. Goverdhan Dutta & Ors.
1305
observations of the High Court are correct.
However, it could not be expected that
when the question regarding the Will was
gone into in a detailed enquiry, where the
evidence was recorded not only of the
appellant, but also of the attesting witness
of the Will and where these witnesses were
thoroughly cross-examined and where the
defendant also examined himself and tried
to prove that the Will was a false document
and it was held that he had utterly failed in
proving that the document was false,
particularly because the document was
fully proved by the appellant and his
attesting witness, it would be futile to
expect the witness to lead that evidence
again in the main suit. It was at the
instance of the High Court in the revisional
jurisdiction that the direction was given
that the Trial Court should first decide as
to whether who could be the legal
representative of Sukhiabai and after
complete enquiry, the Trial Court held the
Will to be proved. The Will was not only
attacked by the appellant on its proof, but
also
on
merits,
inasmuch
as
the
respondent/defendant went on to contend
before the Trial Court during that enquiry
that the Will was unnatural, unfair and was
executed in doubtful circumstances. The
respondent/defendant had also relied on the
reported decision of this Court in Girja
Dutt Singh Vs. Gangotri Datt Singh [AIR
1955 SC 346]. The Trial Court, however,
rejected this contention. On the other hand,
the Trial Court found on merits that the
appellant was living with Sukhiabai and
Sukhiabai had adopted him orally.

17. Evidence of Ramesh Kate was
also referred to, who asserted about this
fact. Reference was also made to the
evidence of Sukihabai herself in the Rent
Control Case No. 14/90-91 that she had
adopted Dashrath Rao (appellant herein)
and that Dashrath Rao lived with her.
Clear cut findings were given by the High
Court in these proceedings that from the
evidence of Prabhakar Rao (PW-2), the
attesting
witness,
it
was
clear
that
Sukhiabai had signed in his presence and
he had also signed in present of Sukhiabai
and had also seen the other attesting
witness signing the Will and attesting the
same. Not only this, but the Trial Court
also wrote a finding that the objection
raised by the defendant (respondent herein)
that Sukhiabai was not in a position to
understand the Will on account of her poor
physical condition, was also rejected by the
Trial Court. It was also noted that the Will
was executed six years prior to her death
and as such, there was no question of
Sukhiabai being suffered with any mental
or physical disability for executing the Will.
Therefore, it is on this basis that the Will
was held to be proved. Once this was the
position and in the same suit, the further
evidence was led, there was no point on the
part of the appellant/plaintiff to repeat all
this evidence all over again. We have
closely seen the relied upon ruling of the
Himachal Pradesh High Court in Suraj
Mani & Anr. Vs. Kishori Lal (cited supra).
The ruling undoubtedly correctly holds that
the finding in an enquiry under Order 22
Rule 5 cannot operate as res judicata,
provided the very question needs to be
decided. The factual situation, however,
differs substantially. The case before the
Himachal
Pradesh
High
Court
only
pertained to the correctness of the order
passed in the enquiry under Order 22 Rule
5, CPC. That was not a case where the
question, as in the present case, fell for
consideration. In fact, the Himachal
Pradesh High Court also observed and, in
our view, correctly, that it was still open to
the petitioner (therein) during the trial of
the suit to establish that the Will was
competent and confered no right, title or
1306 INDIAN LAW REPORTS ALLAHABAD SERIES
interest on the respondent and, therefore,
the respondent was not entitled to any relief
in the suit. Unfortunately, on evidence in
this case, the respondent/defendant did not
do anything and did not even challenge the
evidence of the appellant that he had
become owner of the Will. Merely because
the evidence of respondent/defendant and
Prabhakar Rao (PW- 2) was not repeated
all over again, it cannot be held that the
appellant/plaintiff could be non-suited on
this ground."

28.

In
view
of
the
above
pronouncement of law on the subject, since
no proprietary right in the estate of the
deceased would be going to be determined
under Order XXII rule 5, whether the
application for substitution of respondent
no. 1 is allowed or respondent nos. 2, 3 & 4
are allowed in respect of the deceased
Goverdhan Dutt, it will hardly affect the
merit of the suit and particularly claim of
petitioner
in
his
suit
for
perpetual
injunction.

29. In view of the above, I do not find
any fault with the order of trial court
affirmed in revision that both the parties be
impleaded for the purposes of continuation
of the suit proceedings so as to bring them
to their logical end. Even in the absence of
legal representatives being set up, the court
could have appointed in its discretion
Administrator General or any other person
to represent the estate of late Goverdhan
Dutt who is defendant in the suit of the
present petitioner as the very object of
provision contained in Order XXII is to
continue orderly the suit proceedings and to
bring the suit proceedings to their logical
end.

30. Hence, no interference is
warranted in exercise of power under
Article 227 of the Constitution of India
with the orders impugned.

31. Petition lacks merit and is
accordingly rejected with no order as to
cost.
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(2022)04ILR A1306
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 12.04.2022

BEFORE

THE HON'BLE SIDDHARTH, J.

Matters U/A 227 No. 3600 of 2019

Smt. Saumitra Devi & Ors. ...Petitioners
Versus
M/S S.G. Rockbuilt Pvt. Ltd., Janakpuri,
New Delhi & Anr. ...Respondents

Counsel for the Petitioners:
Sri Rakesh Pande, Sri Dileep Chandra
Mathur, Sri Prem Shankar Kushwaha

Counsel for the Respondents:
Sri Kamlesh Kumar Mishra, Sri A.K.
Srivastava

Civil
Law
-
LOK
Adalat
Act,1987
-
Petitioners entered into agreement to sale-later
cancelled
the
agreement
by
a
noticeRespondents filed a suit for specific performance
of contract-7 issues framed-date fixed for
deciding issue no. 4 and for disposal of
compromise-none of the parties appeared to
verify the compromise before Lok Adalat-but
award was passed-Review-dismissed -present
petition-settlement between parties can be
challenged if violation of procedure u/s 20 of
Act,1987-balatant violation of Regulation 9, 10
(2), and (3) of Regulation of 2009-in referring
the dispute to Lok Adalat-violation of Rules and
Regulation by a single member in purported
capacity of Lok Adalat.
Petition allowed. (E-9)