Civil Revision No. 7785 of 2009 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Civil Revision No. 7785 of 2009 Date of decision : March 03, 2010 Shish Ram and another ....Petitioners versus Vijender and others ....Respondents Coram: Hon'ble Mr. Justice L.N. Mittal Present : Mr. Sanjiv Gupta, Advocate, for the petitioners Mr. Puneet Kansal, Advocate, for respondent no. 1 L.N. Mittal, J. (Oral) Defendants no. 1 and 2 have filed instant revision petition under Article 227 of the Constitution of India assailing order dated 12.10.2009 passed by learned Civil Judge (Junior Division), Kurukshetra, thereby allowing application moved by respondent no. 1 Vijender for being impleaded as legal representative of Karta Ram plaintiff since deceased. Karta Ram filed suit for declaration that mutation no. 244 dated 2.1.2004 and report dated 17.3.2003 vide which mutation has been sanctioned in favour of defendants no. 1 and 2 are illegal, null and void etc. Sale deeds executed by defendant no. 1 in favour of defendant nos 4 to 7 have also been challenged in the suit. Permanent injunction was also Civil Revision No. 7785 of 2009 -2- prayed. Defendants no. 1 and 2/petitioners are brothers of Karta Ram plaintiff. The case of the petitioners is that Karta Ram had not been heard of for 35 years and was therefore, presumed to have died and defendants no. 1 and 2 being his brothers are his natural heirs and have inherited suit property from Karta Ram. Vijender respondent no. 1 filed application Annexure P/6 alleging that plaintiff Karta Ram has expired on 24.4.2008 leaving behind applicant Vijender (respondent no. 1 herein) as his only legal heir as per registered Will dated 9.5.2007. Defendants no. 1 and 2 contested the application by filing reply Annexure P/7. It was alleged that whereabouts of Karta Ram were not known for the last more than 35 years. He was not seen or heard to be alive by any person. The suit itself was filed by some imposter in the name of Karta Ram who was not alive even when the suit was filed. Consequently, no Will as alleged by respondent no. 1 herein was ever executed by Karta Ram. It was also alleged that name of grandfather of Karta Ram was also wrongly mentioned in the alleged Will as Devtia Ram although correct name of grandfather of the plaintiff is Sardara. Learned trial court vide impugned order dated 12.10.2009 allowed the application moved by respondent no. 1 subject to all just exceptions and allowed Vijender respondent no. 1 herein to pursue the suit in place of plaintiff Karta Ram since deceased. I have heard learned counsel for the parties and perused the case file. Civil Revision No. 7785 of 2009 -3- Learned counsel for the petitioner vehemently contended that the trial court without recording any evidence regarding the execution or genuineness of the alleged Will in favour of respondent no. 1 has allowed the application moved by respondent no. 1 and impleaded him as legal representative of plaintiff to pursue the suit. It is contended that without proof of execution of the alleged Will, respondent no. 1 who has no relationship with Karta Ram could not be allowed to pursue the suit. It is also contended that the petitioners being brothers of Karta Ram who was admittedly issueless are his natural legal heirs. It was contended that under Order 22 Rule 5 of Code of Civil Procedure (in short, CPC) before proceeding with the suit, the question whether Vijender respondent no. 1 is or is not legal representative of the deceased plaintiff had to be determined by the court but has not been determined. Reliance in support of this contention has been placed on a judgment of this Court in the case of Bharpur Singh versus Jangir Kaur and another, (1991-2) PLR 202. On the other hand, learned counsel for respondent no. 1 contended that the question as to who is legal heir of Karta Ram has not been adjudicated upon by the trial court by passing the impugned order and on the other hand respondent no. 1 has simply been allowed to pursue the instant suit in place of Karta Ram plaintiff since deceased and the question as to who is legal heir of Karta Ram can be determined independently in any other proceedings. Reliance in support of this contention has been placed on a judgment of Full Bench of this Court in the case of Mohinder Kaur and another versus Piara Singh and others, AIR 1981 (P&H) 130 and also a judgment of Single Bench of this Court in the case of Madhu Civil Revision No. 7785 of 2009 -4- Bhatnagar and others versus Surinder Kumar Bansal, (2004-1) PLR 199 and a judgment of Allahabad High Court in the case of Nand Rani versus Civil Judge, Junior Division, Pilibhit and others, AIR 2004 Allahabad 307. I have carefully considered the rival contentions. Order 22 Rule 5 CPC specifically stipulates 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. 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. 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 Civil Revision No. 7785 of 2009 -5- 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 Madhu Bhatnagar's 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 proceeding further with the suit. For the reasons recorded hereinabove, the instant revision petition is allowed. The impugned order dated 12.10.2009 passed by the trial court is set aside. The matter is remitted to the trial court for fresh decision in accordance with law. ( L.N. Mittal ) March 03, 2010 Judge 'tiwana'