Himachal Pradesh High Court
Between vs Krishna Bansal And Another Reported In on 25 May, 2022
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
.
ON THE 25th DAY OF MAY, 2022
BEFORE
HON'BLE MR. JUSTICE SANDEEP SHARMA
1. CIVIL MISC.PETITION MAIN (ORIGINAL) No.812 of 2019
Between:
SHRI ASHWANI SOOD,
S/O SHRI PREM CHAND SOOD,
R/O HOTEL VARUNA NEAR
AG OFFICE, SHIMLA.
....PETITIONER
(BY MR. AJAY KUMAR, SENIOR
ADVOCATE WITH MR. ROHIT,
ADVOCATE)
AND
1. SMT. MOHINI DEVI SOOD,
w/O SHRI PREM CHAND SOOD,
SINCE DECEASED THROUGH
HER LEGAL HEIRS
A). SHRI PREM CHAND SOOD,
S/O SHRI R/O 6/1, LAKKAR BAZAR,
SHIMLA LAKKAR BAZAR, SHIMLA.
B) SMT. LALITA SOOD,
W/O SHRI NARESH SOOD,
C/O LALITA FURNITURE HOUSE,
SANJAULI, SHIMLA.
C) SMT. BABITA SOOD,
W/O SHRI SANJEEV SOOD,
R/O B-208, MANGADEEP COOPERATIVE
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2
HOUSING SOCIETY LTD, OM NAGAR,
.
AMBADI ROAD, VASAI WEST MUMBAI-401202.
2. SHRI SANJAY SOOD,
S/O SHRI PREM CHAND SOOD,
R/O 6/1, LAKKAR BAZAR, SHIMLA.
....RESPONDENTS
(MR. ASHOK SOOD, SENIOR ADVOCATE
WITH MR. ABHISHEK SOOD, ADVOCATE,
FOR RESPONDENTS NO. 1 (A).
(MR. VIPIN PANDIT, ADVOCATE, FOR
R1(B) AND R1(C))
2. CIVIL MISC.PETITION MAIN (ORIGINAL) No.813 of 2019
Between:
SHRI ASHWANI SOOD,
S/O SHRI PREM CHAND SOOD,
R/O HOTEL VARUNA NEAR
AG OFFICE, SHIMLA.
....PETITIONER
(BY MR. AJAY KUMAR, SENIOR
ADVOCATE WITH MR. ROHIT,
ADVOCATE)
AND
1. SMT. MOHINI DEVI SOOD,
W/O SHRI PREM CHAND SOOD,
SINCE DECEASED THROUGH
HER LEGAL HEIRS
A). SHRI PREM CHAND SOOD,
S/O SHRI R/O 6/1, LAKKAR BAZAR,
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3
SHIMLA LAKKAR BAZAR, SHIMLA.
.
B) SMT. LALITA SOOD,
W/O SHRI NARESH SOOD,
C/O LALITA FURNITURE HOUSE,
SANJAULI, SHIMLA.
C) SMT. BABITA SOOD,
W/O SHRI SANJEEV SOOD,
R/O B-208, MANGADEEP COOPERATIVE
HOUSING SOCIETY LTD, OM NAGAR,
AMBADI ROAD, VASAI WEST MUMBAI-401202.
2. SHRI SANJAY SOOD,
S/O SHRI PREM CHAND SOOD,
R/O 6/1, LAKKAR BAZAR, SHIMLA.
r ....RESPONDENTS
(MR. ASHOK SOOD, SENIOR ADVOCATE
WITH MR. ABHISHEK SOOD, ADVOCATE,
FOR RESPONDENTS NO. 1 (A)
(MR. VIPIN PANDIT, ADVOCATE, FOR
R1(B) AND R1(C))
Whether approved for reporting?. Yes.
This petition coming on for admission this day, the Court passed the following:
ORDER
Since in both the above captioned petitions, challenge has been laid to order dated 5.10.2019 passed by the learned Civil Judge (Senior Division) Shimla, District Shimla, H.P., in CS No. 103-1 of 2011/10 and CS No. 99-10 of 2007, titled Shri Aswani Sood v. Mohini Devi and parties are the same, both the cases were beard together and are being disposed of vide common judgment.
::: Downloaded on - 31/05/2022 20:04:48 :::CIS 42. For having bird's eye view, certain undisputed facts as emerge .
from the record are that petitioner-plaintiff in both the cases (herein after referred to as "the plaintiff" ) filed two civil suits bearing CS No. 103-1 of 2011/10 and CS No. 99-10 of 2007, titled Shri Aswani Sood v. Mohini Devi, for specific performance of the agreement (Ext.PW12/A) and permanent perpetual prohibitory injunction, restraining the original defendant No.1- Smt. Mohini Sood, from claiming any right, title or interest in the suit property in terms of the agreement proved on record Ext.PW7/A, whereby original defendant No.1-Smt. Mohini Sood had agreed to transfer the suit property in favour of the plaintiffs. Since original defendant No.1-Smt. Mohini Sood expired during the pendency of the suits detailed herein above, plaintiff filed applications (Annexure P-5 in both the suits) under Order 22 Rule 4 CPC in both the suits, praying therein for bringing on record the LRS of aforesaid deceased defendant, but before same could be decided, person namely Sanjay Sood, who was defendant No.2 in both the suits also filed an application under Order 22 Rule 4 CPC, praying therein for his substitution in place of original defendant No.1-Smt. Mohini Sood on the strength of will allegedly executed by defendant No.1 Mohini Sood, bequeathing her entire property in his favour. In the applications filed by the plaintiff, he claimed that defendant Mohini Devi died intestate on ::: Downloaded on - 31/05/2022 20:04:48 :::CIS 5 2.2.2017, leaving behind her husband Sh. Prem Chand Sood, Son Shri .
Ashwani Sood, two daughters namely Smt. Lalita and Babita and Sanjay Sood-defendant No.2. Aforesaid prayer made on behalf of the plaintiff came to be resisted on behalf of defendant No.2 Sanjay Sood, who alleged that he is the sole LR of the deceased original defendant No.1-Smt. Mohini Sood as she has bequeathed her entire property in his favour by way of a registered will. Simultaneously, similar plea also came to be taken by him in an application filed by him under Order 22 Rule 4 CPC, seeking therein his substitution in place of original defendant No.1-Smt. Mohini Sood. Learned trial Court having clubbed both the applications decided the same vide common order dated 5.10.2019 (Annexure P-7), whereby applications having been filed by the plaintiffs for bringing on record the LRs as named herein above in place of deceased defendant Mohini Sood, came to be dismissed and application having been filed by defendant No.2 Sanjay Sood, praying therein for his substitution in place of original defendant No.1-Smt. Mohini Sood came to be allowed.
3. Being aggrieved and dissatisfied with aforesaid order dated 5.10.2019, passed by the learned Civil Judge (Senior Division) Shimla, District Shimla, H.P., in applications detailed herein above, plaintiff has approached this Court in the instant proceedings filed under Article 227 of ::: Downloaded on - 31/05/2022 20:04:48 :::CIS 6 the Constitution of India, praying therein to set-aside aforesaid order and .
thereafter allow the applications filed by him for bringing on record the LRs of the deceased original defendant No.1-Smt. Mohini Sood as detailed herein above.
4. Pursuant to notices issued in the instant proceedings, Mr.Vipin Pandit, Advocate has put in appearance on behalf of respondents No. 1 (b) and 1(c), whereas Mr. Abhishek Sood, Advocate, has put in appearance on behalf of respondent No. 1(a) Sh. Prem Chand Sood, who happens to be father of defendant No.2 Sanjay Sood, whose prayer for substitution in place of original defendant No.1-Smt. Mohini Sood has been rejected.
5. Mr. Ajay Kumar, learned Senior counsel appearing for the plaintiff, while making this Court to peruse the order dated 5.10.2019, vehemently argued that same is not sustainable in the eye of law because at no point of time, prayer, if any, made on behalf of the plaintiff for bringing on record the LRS of deceased defendant Mohini came to be considered and decided by the court below, rather court below merely placing reliance upon the will placed on record by the defendant No.2 Sanjay Sood proceeded to order for his substitution in place of original defendant-Smt. Mohini Sood. While placing reliance upon the judgment dated 26.7.2016, passed by the High Court of Karnataka in case titled ::: Downloaded on - 31/05/2022 20:04:48 :::CIS 7 Gurubai v. The Govt. of Karnataka in civil revision petition No. 200015 .
of 2015, Mr. Ajay Kumar, learned Senior counsel, argued that once dispute with regard to will, if any, executed in favour of defendant No.2 Sanjay Sood was raised by the plaintiff, court below ought to have decided the same issue at the first instance before ordering substitution of defendant No. 2 on the basis of will allegedly executed in his favour by the original defendant No.1-Smt. Mohini Sood. To substantiate his aforesaid argument, Mr. Ajay Kumar, learned Senior Counsel, also placed reliance upon the judgment 3.3.2010, passed by Punjab and Haryana High Court in CR No. 7785 of 2009 titled Shashi Ram v. Vijender , wherein it came to be held that if a question arises as to whether any person is or is not the legal representative of the deceased plaintiff or defendant, such question shall be determined by the trial court.
6. Mr. Ashok Sood, learned Senior Counsel, appearing for the defendant No. 1 (a) Sh. Prem Chand Sood, supported the impugned order passed by the learned trial court below and argued that same is based upon proper appreciation of the facts as well as law and as such, no interference is called for. While inviting attention of this Court to judgment passed by the Hon'ble Apex Court in Jaladi Suguna (Deceased) through LRs v. Satya Sai Central Trust and Ors, (2008) 8 SCC 521, he argued ::: Downloaded on - 31/05/2022 20:04:48 :::CIS 8 that question of title is not to be determined in the proceedings under .
Order 22 Rules 4 and 5 CPC, rather in these proceedings only question with regard to representation of the estate of the deceased is to be determined, which otherwise shall have no bearing on the rights/claim of the either party, who may be claiming title being LRs of the deceased person. He argued that in these proceedings, court was only required to decide that who is the LR for the purposes of continuation of the suit and as such, all the LRs are not required to be impleaded as party in place of deceased defendant. He also placed reliance upon the judgment passed by this court in case titled Suraj Mani v.Kishori Lal, 1977 SLC 40.
7. Mr. Vipin Pandit, learned counsel appearing for respondents No. 1 (b) and 1(c), argued that order dated 5.10.2019, passed by the court below is not based upon proper appreciation of provisions contained under Order 22 Rules 4 & 5 CPC and as such, same is not sustainable in the eye of law. He argued that since plaintiff while filing application under Order 22 Rules 4 and 5, seeking therein impleadment as LRs of deceased Mohini Sood raised specific opposition to the will placed on record by defendant No.2, it was bounden duty of the court to first ascertain factum with regard to original LRs left behind by original defendant No.1-Smt. Mohini Sood.
He further submitted that otherwise also, no prejudice would have been ::: Downloaded on - 31/05/2022 20:04:48 :::CIS 9 caused to either of the parties if all the LRs of the deceased Mohini Sood, .
were ordered to be brought on record as it would have avoided multiplicity of litigation in the future. He also submitted before this court that after disposal of the aforesaid applications, defendant Nos.1(b) and 1(c), who happen to be daughter of the original defendant No.1-Smt. Mohini Sood have filed Civil Suit in the competent court of law,laying therein challenge to the will allegedly executed by the deceased defendant No.1 bequeathing her entire property in favour of defendant No.2 Sanjay Sood.
8. I have heard learned counsel for the parties and gone through the records of the case.
9. Having heard learned counsel for the parties and perused the material available on record vis-à-vis reasoning assigned in the order impugned in the instant proceedings, this Court finds substantial force in the submissions of learned Senior Counsel representing the plaintiff that court below while passing the impugned order nowhere assigned reasons, if any, for not impleading the LRs as were proposed to be brought on record by the plaintiff by way of filing application under Order 22 Rule 4 CPC. It is not in dispute that LRs proposed to be brought by the plaintiff by way of an application filed Order 22 Rule 4 CPC, are husband, daughter and sons of the deceased defendant No. 1 Mohini Sood, plaintiff while making prayer for ::: Downloaded on - 31/05/2022 20:04:48 :::CIS 10 impleadment of LRs of deceased also mentioned name of defendant No.2 .
Sanjay Sood, in the application. It is also not in dispute that plaintiff while filing reply to the application filed by defendant No.2 Sanjay Sood, wherein he claimed substitution on the basis of will allegedly executed by defendant No.1 in his favour, disputed the factum of execution of will, if any, by defendant No.1 in favour of the Sanjay Sood and as such, it was bounden duty of the court to first decide that who are the LRs of the deceased original defendant No.1-Smt. Mohini Sood. Since at no point of time, it ever came to be disputed at the behest of defendant No.2 Sanjay Sood that persons proposed to be brought as LRs on record by the plaintiffs are not the legal heirs of deceased defendant No.1 Mohini Sood, court below could not have straightaway proceeded to order substitution of defendant No.2 Sanjay Sood, on the basis of will allegedly executed in his favour by the original defendant No.1-Smt. Mohini Sood. Otherwise also, bare reading of provision contained Order 22 Rule 4 CPC itself suggests that where sole surviving defendant dies and right to sue survives, court on an application made in that behalf shall cause the LRs of the deceased defendant to be made a party and shall proceed with the suit.
10. Since in the case at hand, at no point of time, it ever came to be disputed at the behest of defendant No.2 that persons proposed to be ::: Downloaded on - 31/05/2022 20:04:48 :::CIS 11 brought on record as LRs are not the legal heirs of original defendant No.1- .
Smt. Mohini Sood, court below naturally ought to have allowed the application, especially when plaintiff himself had sought impleadment of defendant No.2, who was otherwise already party in the suit and as such, it cannot be said that by bringing on record the persons proposed to be brought on record by the plaintiff, some prejudice would have been caused to defendant No.2 Sanjay Sood, who was already party in the suit. Order 22 Rule 5 CPC specifically provides that if 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 and as such, this court is unable to accept the contention of Mr. Ashok Sood, learned Senior Counsel representing defendant No.2 Sanjay Sood that once will was placed on record by defendant No.2, there was no occasion, if any, for the court below to go into the aforesaid question, rather this court is of the view that when dispute was with regard to execution of will by the plaintiff, court below ought to have decided that issue at the first instance.
In the regard, reliance is placed upon judgment dated 3.3.2010, passed by Punjab and Haryana High Court in Shashi Ram v. Vijender, CR No. 7785 of 2009. Relevant para whereof read as under:
"11. Order 22 Rule 5 CPC specifically stipulates that if a question arises as to whether any person is or is not ::: Downloaded on - 31/05/2022 20:04:48 :::CIS 12 the legal representative of the deceased plaintiff or .
defendant, such question shall be determined by the trial court. In the instant case, however this question has not been determined by the trial court and without determining the said question, the impugned order has been passed allowing respondent no. 1 to pursue the suit on behalf of the deceased plaintiff. The impugned order is, thus, patently illegal and unsustainable. Judgment in the case of Bharpur Singh (supra) is fully applicable to the facts of the instant case. In that case also, sister of the deceased and another person under a Will were the claimants. However, the trial court did not determine the question as to who is the legal representative of the deceased plaintiff. The sister as well as other person claiming under the Will were both allowed to be impleaded as legal representatives. The order of the trial court was held to be illegal and the matter was remitted to the trial court for fresh decision in accordance with Order 22 Rule 5 CPC. In the instant case also, the same course has to be adopted.
12. It has to be noticed that even in the case of Mohinder Kaur (supra) decided by Full Bench, the issue as to who was legal representative of the deceased was determined under Order 22 Rule 5 CPC after recording evidence. The same course has to be adopted in the instant case. The Full Bench held that determination of the question of legal representative under Order 22 Rule 5 CPC shall not operate as res judicata in a subsequent suit or proceedings because the said determination is for the purpose of prosecuting or defending the suit. Somewhat similar principle has been laid down in Nand Rani and Maihu Bhatnagars cases (supra). However, the position still remains that even for the purpose of permitting a person to pursue or to defend the suit, the question whether such person is or is not legal representative of the deceased plaintiff had to be determined first under Order 22 Rule 5 CPC, before proceedings further with the suit."
::: Downloaded on - 31/05/2022 20:04:48 :::CIS 1311. Reliance is also placed on judgment dated 26.7.2016, passed .
by the High Court of Karnataka in Gurubai v. The Govt. of Karnataka in Civil Revision Petition No. 200015 of 2015, which reads as under:
"14. The Hon'ble Supreme Court while considering the provisions of Section 2(11) and Order 22 Rule 5 of Code of Civil Procedure in the case of Suresh Kumar Bansal vs. Krishna Bansal and Another reported in (2010) 2 Supreme Court Cases 162 has held as under:
"19. The Code of Civil Procedure enjoins various provisions only for the purpose of avoiding multiplicity of proceedings and for adjudicating of related disputes in the same proceedings, the parties cannot be driven to different Courts or to institute different proceedings touching on different facets of the same major issue. Such a course of action will result in conflicting judgments and instead of resolving the disputes, they would end up in creation of confusion and conflict. '
20. It is now well settled that determination of the question as to who is the legal representatives of the deceased plaintiff or defendant under Order XXII Rule 5 of the Code of Civil Procedure is only for the purposes of bringing legal representatives on record for the conducting of those legal proceedings only and does not operate as res judicata and the inter se dispute between the rival legal representatives has to be independently tried and decided in probate proceedings. If this is allowed to be carried on for a decision of an eviction suit or other allied suits, the suits would be delayed, by which only the tenants will be benefited.::: Downloaded on - 31/05/2022 20:04:48 :::CIS 14
.
21. In order to shorten the litigation and to consider the rival claims of the parties, in our view, the proper course to follow is to bring all the heirs and legal representatives of the deceased plaintiff on record including the legal representatives who are claiming on the basis of the Will of the deceased plaintiff so that all the legal representatives namely, the appellant and the natural heirs and legal representatives of the deceased plaintiff can represent the estate of the deceased for the ultimate benefit of the real legal representatives. If this process is followed, this would also avoid delay in disposal of the suit.
22. In view of our discussions made hereinabove, we are, therefore, of the view that the High Court as well as the trial Court were not at all justified in rejecting the application for impleadment filed at the instance of the appellant based on the alleged Will of the deceased plaintiff at this stage of the proceedings.
23. Before parting with this judgment, it is necessary to consider the decision of this Court in the case of Jalai Suguna (deceased) through L.Rs. v. Satya Sai Central Trust and Others, [(2008) 8 SCC 521] cited by the learned senior counsel for the appellant. In Jalai Suguna (supra), this Court held that the intestate heir (husband) and the testamentary legatees (nieces and nephews), seeking impleadment as the heirs of the deceased respondent in an appeal have to be brought on record before the Court can proceed further in the appeal. Furthermore, in that decision it was also held that a legatee ::: Downloaded on - 31/05/2022 20:04:48 :::CIS 15 under a Will, who intends to represent the .
estate of the deceased testator, being an intermeddler with the estate of the deceased testator, will be a legal representative.
24. In view of the aforesaid discussions and in view of the decision reported in Jalai Suguna (supra), we are also of the view that in an eviction proceeding, when a legatee under a Will intends to represent the interest of the estate of the deceased testator, he will be a legal representative within the meaning of Section 2(11) of Code of Civil Procedure, for which it is not necessary in an eviction suit to decide whether the Will on the basis of which substitution is sought for, is a suspicious one or that the parties must send the case back to the probate Court for a decision whether the Will was genuine or not.
15. In view of the aforesaid reasons, the revision petition is allowed. The impugned orders passed by the Trial Court dated 15.04.2015 on I.A.Nos. V and VI made in O.S.No.71/2012, on the file of the Civil Judge *(Sr.Dn.) at Aland is set aside. The matter is remanded to the Trial Court for fresh consideration of the said applications (I.A.Nos.V and VI) after following the procedure as contemplated under Order 22 Rule 5 of Code of Civil Procedure and in the light of the dictums of the Hon'ble Supreme Court stated supra and pass orders in accordance with law."
12. Hon'ble Apex Court in Jaladi Suguna (Deceased) through LRs v. Satya Sai Central Trust and Ors, (2008) 8 SCC 521, which has been pressed into service by Mr. Ashok Sood, learned Senior counsel appearing for defendant No.2, has also held that provisions of Order 22 ::: Downloaded on - 31/05/2022 20:04:48 :::CIS 16 Rules 4 and 5 CPC are mandatory. In this judgment, Hon'ble Apex Court .
has held that when the respondents in an appeal dies and the right to sue survives, LRs of deceased respondent have to be brought on record before the court can proceed further in the appeal. If there is a dispute as to who is the LR of the deceased, a decision should be rendered on such dispute.
Relevant paras of the afore judgment read as under:-
"14. When a respondent in an appeal dies, and the right to sue survives, the legal representatives of the deceased respondent have to be brought on record before the court can proceed further in the appeal.
Where the respondent-plaintiff who has succeeded in a suit, dies during the pendency of the appeal, any judgment rendered on hearing the appeal filed by the defendant, without bringing the legal representatives of the deceased respondent - plaintiff on record, will be a nullity. In the appeal before the High Court, the first respondent therein (Suguna) was the contesting respondent and the second respondent (tenant) was only a proforma respondent. When first respondent in the appeal died, the right to prosecute the appeal survived against her estate. Therefore it was necessary to bring the legal representative/s of the deceased Suguna on record to proceed with the appeal.
15. Filing an application to bring the legal representatives on record, does not amount to bringing the legal representatives on record. When an LR application is filed, the court should consider it and decide whether the persons named therein as the legal representatives, should be brought on record to represent the estate of the deceased. Until such decision by the court, the persons claiming to be the legal representatives have no right to represent the ::: Downloaded on - 31/05/2022 20:04:48 :::CIS 17 estate of the deceased, nor prosecute or defend the .
case. If there is a dispute as to who is the legal representative, a decision should be rendered on such dispute. Only when the question of legal representative is determined by the court and such legal representative is brought on record, it can be said that the estate of the deceased is represented. The determination as to who is the legal representative under Order 22 Rule 5 will of course be for the limited purpose of representation of the estate of the deceased, for adjudication of that case. Such determination for such limited purpose will not confer on the person held to be the legal representative, any right to the property which is the subject matter of the suit, vis-...-vis other rival claimants to the estate of the deceased.
16. The provisions of Rules 4 and 5 of Order 22 are mandatory. When a respondent in an appeal dies, the Court cannot simply say that it will hear all rival claimants to the estate of the deceased respondent and proceed to dispose of the appeal. Nor can it implead all persons claiming to be legal representatives, as parties to the appeal without deciding who will represent the estate of the deceased, and proceed to hear the appeal on merits. The court cannot also postpone the decision as to who is the legal representative of the deceased respondent, for being decided along with the appeal on merits. The Code clearly provides that where a question arises as to whether any person is or is not the legal representative of a deceased respondent, such question shall be determined by the court. The Code also provides that where one of the respondents dies and the right to sue does not survive against the surviving respondents, the court shall, on an application made in that behalf, cause the legal representatives of the deceased respondent to be made parties, and then proceed with the case. Though Rule 5 does not specifically provide that determination of legal representative should precede the hearing of the appeal on merits, Rule 4 read with Rule 11 make it ::: Downloaded on - 31/05/2022 20:04:48 :::CIS 18 clear that the appeal can be heard only after the legal .
representatives are brought on record.
17. The third respondent, who is the husband of the deceased, wants to come on record in his capacity as a sole legal heir of the deceased, and support the case of the Trust that there was a valid gift by the deceased in its favour. On the other hand, the appellants want to come on record as testamentary legatees in whose favour the suit property was bequeathed by will, and represent the estate of the deceased Suguna as intermeddlers. They want to continue the contest to the appeal. When Suguna - the first respondent in the appeal before the High Court died, the proper course for the High Court, was first to decide as to who were her legal representatives. For this purpose the High Court could, as in fact it did, refer the question to a Subordinate Court under the proviso to Rule 5 of Order 22 CPC, to secure findings. After getting the findings, it ought to have decided that question, and permitted the person/s who are held to be the legal representative/s to come on record. Only then there would be representation of the estate of the deceased respondent in the appeal. The appeal could be heard on merits only after the legal representatives of the deceased first respondent were brought on record. But in this case, on the dates when the appeal was heard and disposed of, the first respondent therein was dead, and though rival claimants to her estate had put forth their claim to represent her estate, the dispute as to who should be the legal representative was left undecided, and as a result the estate of the deceased had remained unrepresented. The third respondent was added as the legal representative of the deceased first respondent only after the final judgment was rendered allowing the appeal. That amounts to the appeal being heard against a dead person. That is clearly impermissible in law. We, therefore, hold that the entire judgment is a nullity and inoperative."::: Downloaded on - 31/05/2022 20:04:48 :::CIS 19
.
13. Having carefully perused judgment rendered by this Court in case in case titled Suraj Mani v. Kishori Lal, 1977 SLC 40, this Court finds that same is not applicable in the present facts and circumstances of the case because in that case, issue was whether person claiming right to represent estate on will can be impleaded as a party or not. It is not in dispute that a person in whose favour will, if any, is executed by the deceased plaintiff or defendant can always seek his impleadment, but in the case at hand, when specific dispute with regard to execution of will was raised by appellant/plaintiff, it was bounden duty of the court to first decide that issue before proceedings further with the matter. No doubt, in the case at hand, notices were issued in the applications having been filed by the plaintiff under Order 22 Rule 4 CPC to respondent Nos.1 (a) to 1 (c), but they chose not to come present, but that does not mean that court at that stage having been taken note of the execution of will, if any, by the deceased in favour of defendant No.2-Sanjay Sood, could have proceeded to order substitution of defendant No.2 Sanjay Sood, who happens to the son of Mohini Sood straightaway, rather in that situation, it after having taken ::: Downloaded on - 31/05/2022 20:04:48 :::CIS 20 note of the dispute raised with regard to execution of will by defendant No.1 .
in favor of defendant No.2 ought to have decided that issue at the first instance. Otherwise also, to avoid multiplicity of litigation, it could have ordered substitution/impleadment of all the persons as detailed in para-2 of the application filed by the plaintiff under Order 22 Rule 4 CPC, which also included defendant No.2 Sanjay Sood. As has been taken note herein above, respondents No.1 (b) Smt. Lalita and 1(c) Smt. Babita, who happen to be daughter of the original defendant No.1-Smt. Mohini Sood have already filed independent suits in the civil court, laying therein challenge to will allegedly executed in favour of defendant No.2 Sanjay Sood by original defendant No.1-Smt. Mohini Sood, meaning thereby, in case order dated 5.10.2019, impugned in the instant proceedings is allowed to sustain and suits having been filed by the plaintiff are allowed to proceed without there being impleadment of respondents No. 1 (a) to 1 (c), there would be multiplicity of litigation in future, which otherwise can be avoided by making impleadment of the natural legal heirs of the deceased Mohini Sood. Though in normal circumstances, this court having taken note of the illegality and infirmity in the impugned order in instant proceedings as has been discussed in detail ought to have remanded the case back to the learned trial Court, for deciding the applications afresh, but having taken ::: Downloaded on - 31/05/2022 20:04:48 :::CIS 21 note of the fact that suit is hanging fire for the last 14 years in the trial .
court and these proceedings are pending before this Court for the more than three years, this Court deems it fit to allow the applications i.e. CMA No. 27-6 of 2017 and CMA No. 26-6 of 2017, having been filed by the plaintiff and all the LRs as detailed in the applications filed by plaintiff, who otherwise being dominus-litus is entitled to make anybody party, are ordered to impleaded as LRs of deceased defendant No. 1. Ordered accordingly.
14. Consequently, in view of the above, present petitions are disposed of in the aforesaid terms and order dated 5.10.2019 passed in CMA No. 41-6 of 2017 & CMA No. 27-6 of 2017 and CMA No. 40-6 of 2017 & CMA No. 26-6 of 2017 in CS No. 103-1 of 2011/10 and CS No. 99-10 of 2007, respectively, is quashed and set-aside. Learned court below is directed to correct the memo of parties on the basis of amended memo of parties to be filed by the learned counsel for the plaintiff within ten days.
Learned counsel for the parties undertake before this Court to cause presence of their respective clients before the court below on 13.6.2022, enabling it to proceed with the matter further. Since suit is pending adjudication for more than 14 years, this Court hopes and trusts that court below would make all out efforts to conclude the trial expeditiously.
::: Downloaded on - 31/05/2022 20:04:48 :::CIS 22Pending applications also stand disposed of accordingly. Record, if .
received, be sent back forthwith.
25th May, 2022 (Sandeep Sharma),
(manjit) Judge
r to
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