Orissa High Court
Netrananda Dehuri vs Bhagirathi Dehuri And Anr. on 8 July, 1991
Equivalent citations: 1991(II)OLR323
Author: A. Pasayat
Bench: A. Pasayat
JUDGMENT A. Pasayat, J.
1. Petitioner assails correctness of order passed by the learned Subordinate judge, Udala accepting prayer for substitution made by opposite party No. 2 in place of original" plaintiff Bhagirathi Dehuri in a suit for partition.
2. Factual antecedents are as follows :
Bhagirathi filed a suit for partition wherein the present petitioner was sole-defendant. During pendency of the suit, Bhagirathi died on 25-8- 1989 and opposite party No. 2 claiming to be his widow filed a petition for substitution in his place under Order 22. Rule 3 of the Code of Civil Procedure, 1908 (in short 'the Code'). This motion was objected to by petitioner inter alia on the ground that Bhagirathi was never married and the applicant was not his widow. Both parties accepted that Bhagirath died issueless and therefore, the only question that remained to be determined was whether applicant was Bbagirathi's widow. Since there was controversy as to whether the applicant was legal representative of deceased-plaintiff, such question was determined by the Court. Referring to and relying no a certified copy of voters list of Udala constituency of Ambika-deipur polling booth, the learned Subordinate Judge held that prima facie it was proved that applicant was Bhagirathi's widow. Therefore, he allowed the prayer for substitution.
3. Though notice was issued to opposite party No. 2, she did not appear and sent an affidavit praying that the same may be considered before disposal of the. revision application.
4. Main plank of petitioner's challenge is that requisite inquiry was not conducted by the learned subordinate judge and as such the impugned order is not sustainable. It is submitted that a look at the proviso to Rule 5 of Order 22 makes it clear that evidence has to be recorded. According to him, if the appellate Court before determining the question can direct any subordinate Court to try the question and return the records together with evidence, if any, recorded at such trial, its findings and reasons therefor, it is to be held that statutorily recording of evidence is necessary when an application for substitution is made before the trial Court itself. It was also submitted that undue emphasis has been laid on voters' list which in any event was not conclusive. Great emphasis was laid . on applicant's description as Manika Dei and not Manika Dibya as according to the objector, a widow never describes herself as Dei and always describes herself as Dibya according to local custom.
5. For resolution of the point involved in the revision application, reference to Order 22, Rule 3 and Order 22, Rule 5 is necessary. Order 22, Rule 3 deals with the procedure in case of death of one of several plaintiffs or of sole plaintiff. When the sole plaintiff dies and right to sue survives, the Court on an application in that behalf, shall cause the legal representative of the deceased plaintiff to be made a party and shall proceed with the suit. 'Legal representative' is defined in Section 2(11) of the Code, It is not disputed that if the applicant Manik was found that to be the widow of Bhagirathi, she can in law represent "the estate of deceased Bhagirathi and can continue the proceeding. Order 22, Rule 5 provides for determination of question as to legal representativeship, in case of a dispute that a person is or is not the legal representative of a deceased plaintiff or a deceased defendant, as the case may be. The said rule requires the Court to decide such a question forthwith if it arises as to whether a particular person is legal representative of a deceased party. lt is not permissible to be left open to be decided when the suit is heard. It is relevant to point out here that the expression 'determine' is very significant. It cannot be equated with the word 'decide'. An enquiry in the matter of determination of a legal representative under this provision is by and large summary in nature. A similar view has been taken in AIR 1979 Punjab 194 : Mangat and Anr. v. Surja. Substitution of a person as legal representative results in continuation of the proceeding. The order for substitution made after enquiry only entitles a person substituted to carry on the suit but cannot be said to confer any right of heirship on property, Decision on such an issue does not operate as res judicata, (See AIR 1963 Pat. 390: Dukh Haran Tewary and Ors. v. Dulhin Bihasa Kuer and Anr., AIR 1965 MP 72 : The Kalyanmal Mills Ltd. Indore v. Volimohammed and Anr., AIR I988 Madras 117 : Muniappa Nadar and Ors. v. K. V. Doraipandi Nadar and Anr.; and AIR 1 81 P & H 130 (F.B.) Mohinder Kaur and Anr. v. Piara Singh and Ors.).
6. A conspectus of the impugned order shows that the Court was conscious of its obligations, in terms of Order 22, Rule -5, enquired into the matter and permitted parties to place materials in support of their respective claims. On being satisfied,with the materials placed by the applicant, it held that the applicant was entitled to continue the suit. The objector- present petitioner remained satisfied by filing an objection primarily indicating that description in the name of the applicant as 'Dei' showed that she was not a widow. Mere wrong description of a party that too by description 'Dei' instead of 'Dibya' is not sufficient to disbelieve the claim. This is not a case of no evidence. While exercising revisional jurisdiction, sufficiency of materials adduced on which a subordinate Court has acted, cannot be adjudicated. No plausible material was placed by the objector. It was not shown to me that he wanted to lead evidence .which was not permitted by the Court. The. lower Court records were called forand on a perusal of the. same, I find that there was no motion by the objector that he wanted to lead evidence. He remained satisfied by filing an objection, which was duly considered. Learned subordinate Judge has disposed of the matter on consideration of materials placed before him. I do not find any scope for interference in this . revision application which . is dismissed. No costs.