Rajasthan High Court - Jaipur
Kastoor Chand Saklewa (Correct Name ... vs Shri Vardhman Sthanakwasi Jain Shrawak ... on 26 July, 2019
Author: Prakash Gupta
Bench: Prakash Gupta
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil First Appeal No. 1072/2018
Kastoor Chand Saklewa (Correct Name Saklecha) S/o Shri Gulab
Chand Oswal, Shop No. 1, Lal Bhawan, Chaura Rasta, Jaipur.
----Appellant
Versus
Shri Vardhman Sthanakwasi Jain Shrawak Jaipur Sangh, Lal
Bhawan, Chaura Rasta, Jaipur A Registered Society Under The
Rajasthan Societies Act Through Mantri Smt. Manjula Bumb.
----Respondent
For Appellant(s) : Mr. NK Maloo Sr. Adv.
For Respondent(s) : Mr. Ashok Mehta Sr. Adv.
HON'BLE MR. JUSTICE PRAKASH GUPTA
Order
26/07/2019
An application (bearing No.12678/2019) has been filed under Order 22 Rule 3 read with Section 151 CPC by the legal representative of deceased appellant Late Shri Kastoor Chand Saklewa for taking him on record as legal representative of the deceased appellant.
I have heard learned counsel for the parties. It is submitted by Mr. Ashok Mehta, learned Sr. Counsel appearing for the respondent that none of the legal representative was doing business in the rented premises in the life time of Late Kastoor Chand Saklewa and thus, in view of Section 3(vii)(b) of the Rajasthan Premises (Control of Rent & Eviction) Act, none of the persons mentioned in the application comes within the purview of `tenant'.
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On the other hand, it is submitted by the learned counsel for the applicant that the applicant was carrying on business in the rented premises with the appellant during his life time. Therefore, right to sue survives in the applicant and the appeal does not abate.
Having heard learned counsel for the parties and after going through the material available on record, I am of the view that this question of fact cannot be decided without permitting the parties to lead evidence in respect of their respective cases and without coming to a finding on such a question of fact by the court. In this state of affairs, pending the disposal of the First Appeal, it is desirable to send the case to the trial court to determine the status of the applicant as legal representative of late Late Kastoor Chand Saklewa after permitting the parties to adduce evidence under the provisions of Order 22 Rule 5 of CPC, which deals exclusively with the determination of question as to the legal representative of a deceased. The above view of the court finds support from the judgment of the Apex Court rendered in the case of Kanhaiya Singh Santok Singh & Ors. vs. Kartar Singh {(2009)5 SCC 155} wherein their Lordships of the Supreme Court in similar circumstances in paragraphs Nos. 18 and 19 have held as under:-
"In this state of affairs, pending the disposal of the Second Appeal, the High Court ought to have sent the case to the trial court to determine the status of the appellants as legal representatives of late Santok Singh after permitting the parties to adduce evidence, under the provisions of Order 22 Rule 5 of CPC, which deals exclusively with the determination of question as to the legal representatives of a deceased. For a proper understanding of the above stated position, it is necessary to reproduce the provision which runs as follows:(Downloaded on 01/09/2019 at 09:10:08 PM)
"Rule 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 therefore, and the Appellate Court may take the same into consideration in determining the question."
19. Thus considering the ambiguous position regarding the status of the appellants relating to their status as tenants, it was necessary for the High Court to remit the matter to the trial Court for a proper determination of the factual aspects whether the appellants were in fact carrying on business with late Santok Singh at the time of his death by taking evidence and thereafter, come to a finding whether the appellants shall be brought on record in the second appeal as the legal representatives of late Santok Singh."
In view of the above, the matter is remitted to the learned trial court who, in turn, shall take evidence of the parties as to whether applicant was, in fact, carrying on business in the rented premises with Late Kastoor Chand Saklewa at the time of his death and after considering the evidence brought on record by the parties shall make a finding on the status of the applicant pursuant to the provisions of Section 3(vii) of the Rajasthan Premises (Control of Rent & Eviction) Act, 1950 and record thereafter may be sent back to this Court with the finding. This exercise shall be done within a period of four months from the date of receipt of this order.
Both the parties are directed to remain present before the trial court on 19/8/2019.
(PRAKASH GUPTA),J (Downloaded on 01/09/2019 at 09:10:08 PM) (Downloaded on 01/09/2019 at 09:10:08 PM) Powered by TCPDF (www.tcpdf.org)