Allahabad High Court
Om Giri Chela Late Sri Arjun Giri vs Mandir Shiv Jee Maharaj Birajman And ... on 27 July, 2004
Equivalent citations: 2004(4)AWC3689
Author: S.N. Srivastava
Bench: S.N. Srivastava
ORDER S.N. Srivastava, J.
1. This writ petition is directed against the order dated 24.3.2004 passed by Additional District Judge/Special Judge (E.C. Act) Pilibhit, rejecting application Nos. Kha-54/2 and 3 accepting the objection Ga-63 of other side.
2. Brief facts are that Om Giri filed an application for substitution claiming himself to be the legal representative of Arjun Singh alias Arjun Giri. Trial court before whom suit is pending rejected the application for substitution in place of Arjun Giri plaintiff. This order is impugned in the present writ petition.
3. Heard learned counsel for the petitioner.
4. Learned counsel for petitioner urged that the order passed by Additional District Judge, Pilibhit, rejecting substitution application suffers from manifest error of law and findings are perverse. He further urged that petitioner is the heir and legal representative of Arjun Giri and is claiming himself to be legal representative for substitution in place of Arjun Giri and substitution application is liable to be allowed.
5. After having heard learned counsel for the petitioner, this Court is of the view that trial court while deciding substitution application has recorded a finding that from material on record petitioner is not able to prove this case that he is disciple (Chela) of Arjun Giri alias Arjun Singh and is legal representative on the basis of Will.
6. This Court is further of the view that if any order is passed on substitution application, principle of res judicata shall not apply as order is passed in summary proceeding for purposes of substitution to allow the suit to proceed and parties shall be at liberty to get their rights declared from title suit by competent court. My view is supported by a decision of Division Bench case of this Court in Ram Kalap v. Banshi Dhar and Ors., AIR 1958 All 573. The relevant paragraph is quoted below :
"From the above, it will be seen that there is a preponderance of authority, both in this Court and in the other Courts, against the plaintiffs contention. The order passed under Order XXII Rule 5 of the Code of Civil Procedure, involved a summary enquiry as to who should be substituted in place of the deceased in the appeal during the pendency of which he died. A decision that was made under Order XXII Rule 5 of the Code would not, therefore, constitute res judicata on the question which was expressly raised in the present suit as to whether the Will had been properly executed and attested and on which question no evidence whatsoever had been produced on behalf of the plaintiff.
The facts on the Allahabad case in Raj Bahadur v. Narayan Prasad (A), cited above, which appears to favour the present plaintiffs view, were very different from the facts of the present case. However, if it was intended to lay down in the case of Raj Bahadur v. Narayan Prasad (A), that a decision in the summary enquiry under Order XXII Rule 5, Code of Civil Procedure for ever barred any one again claiming property as the heir of the deceased party in the suit, then we respectfully dissent from it. In our judgment the view expressed in the earlier Allahabad case, namely Parsotam Rao v. Janki Bai (B), which was followed later on in Aritu Rai v. Ram Kinkar Rai (C), is to be preferred.
The view that an order passed under Order XXII Rule 5, C.P.C. does not operate as res judicata, is supported by abundant authority in other High Courts, and that being so, we hold that since in the present suit the plaintiff failed to prove the due \ execution and the attestation of the Will set up by him he was not, entitled to a decree over the property as legatee of the deceased."
7. In view of the above, I don't consider it a fit case/for interference against the order of substitution,
8. Writ petition is dismissed.