Kerala High Court
Kunchikavu vs Kesavan Nayar on 10 June, 1959
Equivalent citations: AIR1960KER79, AIR 1960 KERALA 79, ILR (1959) KER 746, 1959 KER LJ 622, 1959 KER LT 659
JUDGMENT Anna Chandy, J.
1. This Revision Petition is from an-Interlocutory Order passed by the Sub-Judge, Otta-palam in O. S. No. 39 of 1954 of that court.
2. The suit, is tor arrears of maintenance from the Tarwad. Pending trial, the plaintiff died and his son, the respondent here, applied to get himself imp leaded as the legal representative of his father on the strength of a will. The defendant opposed the application questioning the genuineness and validity of the will. The learned Sub-Judge ordered the respondent to be impleadcd, adding that "the genuineness of the will, will be considered in the suit".
3. The appellant contends that the learned Sub-judge erred in permitting the respondent to be impleaded without first deciding whether he was in fact the legal representative of his father.
4. This contention has to be accepted. Order 22, Rule 5 of the Civil Procedure Code enjoins that:
"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."
It is clear from the wording that when such a question arises the court must decide on it, and it is equally clear that the court must determine the question before proceeding any further with the suit. This view has been upheld in the cases reported in T. S. Nagappa Nadar v. T. S. Kuruppiah Nadar, AIR 1925 Mad 456; Jato Singh v. Mt. Malti Kuer, AIR 1947 Pat 474; Ambika Prasad Singh v. Jagadamba Prasad Singh, AIR 1945 Oudh 289; Kali Pachi v. Ramalekshmi Ammal, AIR 1953 Trav-Co. 158. In the T. C. case His Lordship Sankaran J., as he then was, held that, "When a party to the suit dies and the question arises as to who is his legal representative that question has to be determined by the court before further proceeding with the suit. The provision to that effect as contained in Order 22, Rule 5, Civil Procedure Code is mandatory".
5. It might sometimes seem, that it is more expedient and less wasteful of time and effort, to decide the question in the suit especially where a more or less elaborate enquiry is needed, and where the question of who the legal representative is, will depend on facts which are material to the suit itself. But, it is not so. It will be far less expedient and far more wasteful of time and effort, if the party is permitted to contest the suit to the end and win it, and then be told that he cannot get the benefit of it because it is found that he has been mistakenly impleaded in the suit. It will be even more so where, as in this case, not only his claim to be impleaded is denied but it is also alleged that his application itself is barred by limitation.
6. In the result the order impleading the plaintiff as legal representative of his deceased father is reversed and the petition is remanded for fresh disposal after duo enquiry. The petitioner will get the costs of this petition.