# Smt. Shanti Devi v. D.D.C. and others

- **Citation:** (2012) 2 ILRA 902
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2012-05-16
- **Case number:** Civil Misc. Writ Court No. 32814 of 2002
- **Bench:** Ran Vijai Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-shanti-devi-v-d-d-c-and-others-42203
- **Pages:** 4

## Headnote

Code of Civil Procedure-Order XXII Rule5-scope for determination of legal heirconfined
only
with
purpose
of
determination of proceeding-it shall not
effect the rights of parties-substitution
proceeding
for
asserting
the
legal
representation
for
continuance
of
proceeding-both applicants allowed to
be substituted.

Held: Para 6

The words used "shall proceed with the
suit" in Order XXII Rule 3 is if read with
Rule 5 then it will mean to carry on the
proceeding uptill it reaches to its logical
end.
To
my
mind
the
scope
of
substitution application is limited one i.e.
to prosecute the suits/proceedings and
the order passed on the substitution
application is not binding on the court
which will examine the genuineness of
the documents claiming right over the
property in dispute.
Case law discussed:
AIR 1975 Mad 174; AIR 1988 Mad 117; AIR
1994 Raj 31; Substitution Application No.
42063 of 2008 in Second Appeal No. (282) of
2002 Smt. Pramila Devi Vs. Rajendra Prasad
and others decided on 10.9.2008

## Text

902 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 16.05.2012

BEFORE
THE HON'BLE RAN VIJAI SINGH, J.

Civil Misc. Writ Court No. 32814 of 2002

Smt. Shanti Devi

 ...Petitioner
Versus
D.D.C. and others
 ...Respondents

Counsel for the Petitioner:
Sri M.A.Qadeer
Sri Anees Ahmad
Sri R.P.S. Chauhan
Sri R.R. Khan
Sri Shamim Ahmad
Sri V.M. Zaidi
Sri S.M.G. Asgar
Sri S.C. Sinha
Sri A.K. Tripathi

Counsel for the Respondents:
C.S.C.
Sri Anupam Kulshrestha
Sri Brijesh Yadav
Sri K. Srivastava

Code of Civil Procedure-Order XXII Rule5-scope for determination of legal heirconfined
only
with
purpose
of
determination of proceeding-it shall not
effect the rights of parties-substitution
proceeding
for
asserting
the
legal
representation
for
continuance
of
proceeding-both applicants allowed to
be substituted.

Held: Para 6

The words used "shall proceed with the
suit" in Order XXII Rule 3 is if read with
Rule 5 then it will mean to carry on the
proceeding uptill it reaches to its logical
end.
To
my
mind
the
scope
of
substitution application is limited one i.e.
to prosecute the suits/proceedings and
the order passed on the substitution
application is not binding on the court
which will examine the genuineness of
the documents claiming right over the
property in dispute.
Case law discussed:
AIR 1975 Mad 174; AIR 1988 Mad 117; AIR
1994 Raj 31; Substitution Application No.
42063 of 2008 in Second Appeal No. (282) of
2002 Smt. Pramila Devi Vs. Rajendra Prasad
and others decided on 10.9.2008

(Delivered by Hon'ble Ran Vijai Singh, J.)

Re:
-
Civil
Misc.
Substitution
Applications No. 287860 of 2008 and
322897 of 2009 are taken up for orders.

1. Both the applicants claim
themselves
to
be
legal
heir
and
representative of sole petitioner late
Shanti Devi. The applicant of Substitution
Application No. 287860 of 2008 claim
himself to be sole surviving heir of late
Shanti Devi whereas the applicant in
Substitution Application No. 322897 of
2009 claim herself to be daughter of late
Shanti Devi. Both sides dispute status of
each other and their relation to late Shanti
Devi.

2. Sri M.A.Qadeer, learned Senior
Counsel assisted by Sri Shamim Ahmad
appears in Substitution Application No.
287860 of 2008 whereas Sri V.M.Zaidi,
learned Senior Counsel assisted by Sri
S.M.G. Asgar, appears in Substitution
Application No. 322897 of 2009.

3. It is not in dispute that late Shanti
Devi had filed writ petition and she has
passed away. In both the applications, the
applications praying for condonation of
delay in filing the substitution application
have been allowed. Both the applications
have been filed under Order 22 Rule 3 of
the
Code
of
Civil
Procedure.
2 All] Smt. Shanti Devi V. D.D.C. and others
903

4. Heard learned counsel for the
parties.

5. For deciding the rival claim for
substitution, the language used under Rule
3 and Rule 5 of Order 22 of Code of Civil
Procedure are required to be examined,
which are reproduced herein under :-

Procedure in case of death of one of
several plaintiffs 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.

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.]

6. The words used "shall proceed
with the suit" in Order XXII Rule 3 is if
read with Rule 5 then it will mean to carry
on the proceeding uptill it reaches to its
logical end. To my mind the scope of
substitution application is limited one i.e.
to prosecute the suits/proceedings and the
order
passed
on
the
substitution
application is not binding on the court
which will examine the genuineness of
the documents claiming right over the
property in dispute.

7. The view taken by me is
supported by numerous decisions of this
court as well as of other High Courts. In
the case of Jagdish Vs District Judge,
Gorakhpur and others reported in (1999
(17) LCD-1451) this Court has has
observed that:-

"The scope and ambit of Order 22 is
related to the carriage of the proceedings
to the extent who is to carry on the
proceedings. It does not determine the
rights of the parties or even persons
claiming as legal representatives. The
definition of legal representative as
defined in Section 2(ii) of the Code of
Civil Procedure includes a person who
inter-meddles with the estate of the
deceased. Thus it is only a proceeding for
ascertaining as to who is the legal
representative eligible to continue the lis.
The scope of enquiry under Order 22
cannot surpass the purpose and object for
which Order 22 is prescribed. It cannot be
stretched to the extent of determining the
lis between the parties on merits by
deciding title. Thus the provision of Rule
5 of Order 22 relating to determination of
the question as to legal representative is
confined only to the extent of determining
the legal representative for the purpose of
carriage
of
the
proceeding
and
representing the lis or the estate even
though he may be a inter-meddler. It does
not determine the rights of the parties.
Even if it is so determined, the same
would be wholly outside the scope of
final determination in the suit where the
904 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
question
is
involved.
The
question
remains open to be decided in appropriate
proceeding either in the suit itself or in a
separate suit or proceeding as the case
may be. The substitution does not
preclude the parties to establish their
respective right during the course of
hearing of the suit, there it could be so
permitted within its scope and ambit, on
materials to be produced by adducing
evidence oral or documentary. Even if a
legal representative is excluded still then
he has a right to apply for being added as
a party to a proceeding if he is so advised
depending on the facts and circumstances
of the case."

8. The Madras High Court has also
taken a same view in the case of Krishna
Kumar v. N.G. Naidu and another (AIR
1975 Mad 174) while dealing the scope of
Order 22 Rule 5 which reads as under :-

" An adjudication in the course of
proceeding
to
substitute
legal
representatives does not make the legal
representative heirs as such. The finding
should be construed to have given only
for the prosecution of the proceeding. It is
not a decision on merits. It cannot operate
as res judicata."

9. The same view has been reiterated
in the case of Muniappa Nadar and others
v. K.V.Dora pandi Madar and another(
AIR 1988 Mad 117).

10. The Full Bench decision of the
Punjab High Court in the case of
Mohinder Kaur and another v. Piara
Singh and others (AIR 1981 Punj 130)
have also taken the same view that the
decision in a proceeding under Order 22
Rule 5 of the Code does not operate as res
judicata. A similar view has been taken by
the Himanchal Pradesh High Court in the
case of Nisapati v. Gayatri and others
(AIR 1982 HP 8).

11. The Rajasthan High Court has
also taken the same view in the case of
Kalu Ram v. Charan Singh (AIR 1994 Raj
31) where it has been observed:

" that the enquiry into right to
heirship is not the determining factor in
deciding whether a person is or is not
legal representative for the purpose of
proceeding before the Court. What is
required to be considered is whether the
person claiming to represent the estate of
the deceased for the purpose of lis has
sufficient interest in carrying on litigation
and is not an imposter. In case of rival
claimants, it may also be necessary to
decide that out of the rival claimants, who
really is the person entitled to represent
the estate for the purpose of a particular
proceedings. Even that determination
does not result in determination of inter se
right to succeed to the property of the
deceased and that right has to be
established in independent proceedings in
accordance with law. In the said case, in a
suit for specific performance of contract
of sale transferor died leaving his widow
who too dies during the proceeding. One
stranger on the strength of an unprobated
will sought to be impleaded in the suit. He
was allowed to be substituted in place of
the widow."

12. This Court in the Substitution
Application No. 42063 of 2008 in Second
Appeal No. (282) of 2002 Smt. Pramila
Devi Vs. Rajendra Prasad and others
decided on 10.9.2008 has also taken the
same
view.
2 All] Pramod Kumar Singh V. State of U.P. and others
905

13. In this case since the sole
petitioner has died and both the applicants
namely Sri Om Prakash and Smt. Abha
Sharma have filed substitution application
to prosecute the petition, therefore, both
substitution applications are allowed. Let
Sri Om Prakash and Smt. Abha Sharma
be substituted in place of sole petitioner in
the array of parties by the office within
three weeks.

14. List this case in second week of
July, 2012.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 09.07.2012

BEFORE
THE HON'BLE AMRESHWAR PRATAP SAHI, J.

Civil Misc. Writ Petition no. 32391 of 2012

Pramod Kumar Singh

 ...Petitioner
Versus
State of U.P. Thru Secy. and others

 ...Respondents

Counsel for the Petitioner:
Sri Raj Narayan

Counsel for the Respondents:
C.S.C.

Constitution of India, Article 226-Writ
Petition-by brother of petitioner (a minor
girl)-without disclosing fact as to how
became
guardian-petition-held-not
maintainable.

Held: Para 3

In the opinion of the Court the petitioner
cannot represent his sister so long as he
is not the guardian of his sister under the
relevant law for the time being in force
and even otherwise a minor can be
appropriately
represented
in
a
writ
petition on the principles as enshrined
under Order 32 of the Code of Civil
Procedure. In my opinion the petition
suffers from the defect aforesaid and is
accordingly dismissed without prejudice
to rights of the minor to represent her
cause in accordance with law through
her lawful guardian.

(Delivered by Hon'ble Amreshwar Pratap
Sahi, J.)

1. This petition has been filed by the
brother of one Kumari Richa Singh who
is admittedly a minor. The relief claimed
in this petition is that the result of Km.
Richa has not been properly prepared as
the marks awarded to her in the
examination in question is not on proper
evaluation.

2. Unfortunately this petition has
been filed by the brother of the candidate
without disclosing as to how he is the
guardian of the concerned student. The
Vakalatnama has been filed by Pramod
Kumar Singh who is the brother of the
candidate.

3. In the opinion of the Court the
petitioner cannot represent his sister so
long as he is not the guardian of his sister
under the relevant law for the time being
in force and even otherwise a minor can
be appropriately represented in a writ
petition on the principles as enshrined
under Order 32 of the Code of Civil
Procedure. In my opinion the petition
suffers from the defect aforesaid and is
accordingly dismissed without prejudice
to rights of the minor to represent her
cause in accordance with law through her
lawful guardian.

4. The writ petition is dismissed.
---------