/Ci^ ./ ^ SB : H011)>BLE SHRI JUSTII^PieLTMIKBRDIWAKBR W.P. N0. (22711921/2008 PsynfnasssKs 1. 1-A 1-B 1-C 1-D 1-E RBSPOKDBirTS Smt Saida KIiaa (deceased) W/o, Abdul Salim Khan, Caste Muslim, Occupation- Housewife, r/o, Jixni Liae, Bi2aspur, Tahsil & Distt. Bilaspur (CG) Mohd. Riyazur Rehmaa, S/o, Mehfiw^ Rehxnan, aged 37 years Mod, Imtiyazur Rehman, S/o, Mehfooz Rehman, aged 38 years Mohd, Latifur Rehman, S/o, Waheed Rehiaaii, aged 51 years MohdL Miimtazur Rehman^ S/o. Waheed Rehmaa, aged 48 years Molid. Aminur Rehmaii> S/o. Wafaeed Reluaan, aged 40 yeors Sl. No. (1-a) & (1-b) r/o. Danipara, Raigarh, Tahsil and Distt Raigarh (CG) Sl. No. (l-c to (1-e) r/o. Purani Basti, Kharsia, Tahsil-Kharsia, Distt. Raigarh (CG) Md. Hussafca Haadi (deceased) S/o. Abdul Karun, ^ged 55 years, Caste Muslim, Occupation Service (Health Department), 1-A Mehroonisa, W/o, Mohd. Hussam Haadi, aged 57 years 1-B Rizwaa, S/o. Mohd. Hussain Haadi, svged 36 years 1-C Imraa S/o, Mohd. Hussam Veraws 1. "^r:.-.^-;..;... ^ ;;; ^^^ il ^... A^ Haadi, aged 33 years 1-D Shabana D/o. Mohd. Hussain Haadi, aged 31 ycars ABl r/o. Pawara Chowk, Byion Bazar, Raipur, Tahsil & Distt, Raipur (CG) 2. Abdul Salim. Khan, S/o. Abdul Ralmn Khaa, agcd 55 years, r/o, Juni Liae, (Mohra Bada) Bilaspiir, Tahsil & Distt Bilaspur (CG) WRIT PBTITION UNDER ARTICLB 227 OF THB CONSTITUTION OP I21DIA Aoitearanoe: 1-D. Shri M.A,LatifRehma3a»Gounsel for the petltioaers. Sliri Vivek Chopra, couiisel for rcspondeiite No, 1-A to Shri Maaoj Chouhaa, counsel for respoadent No<2. ORALORDBR (20.04.2009) The challenge ia fhe petitton 1s the oaxler dated 25.07.2007, by which the appHcation filed by the petitk?aers under Order 22 Rule 3 of the Code of Civil Procedure has been rejected by the Coiirt below, The submission of thje coiinsel for the petititoiiers is that by the oxder impugned flieir application has been rejected summarily without conducting any enquiry as stipulated imder Oider 22 Riile 5 of the Codc of Ciwfl Procedure, Accordmg to the coiinsel for tfae petitioners, as per Mohammedan Law, the petitioners arc legal heirs of fhe deceased under Schedule 2 aud liiereforc they have eveiy right to prosecute fhe suit He fiirther submits fhat ixx tiie appUcation filed by husbaad ofthe deceased, ie. respoudent 4^ -&- No.2, fhere is categorical sufomissioa cm his behalf that he has no objection ifhe is beiiig brought €XDL recoixl aloiig wiffa other petitioners. On fhe other hand, learaed couiisel for the respondent No, 1-A to 1-D submtts tfaat tihje oxxier i3Xtpu^ d is strictty ixi accordaiice with law aiid fhere is IIQ illegaMty m fhe samie, Accordnig to him, fhe appMcation of respoiidexit No.2/husband under Oider 22 Rule 3 of fhe Code of Civfl Procedure is stiU. pemiixig aad fherefiwe, fhere m 110 iUeipdity ia passiog the order impugned. I have heaid rival submissicms <xf the partiea, Admittedtyy the Court below has rejected ffae appUcaeoa as ffled by fhe petitionex*s under Order 22 Rule 3 oftihie Code of Civil Procedure without decidiag fhe rcspective rights of the parties aad wifhbut conductiiig any eiiqiiiry as conteinplated under Oider 22 Rule 5 of tfae Code of Civil Procedurc. Tfae Court belcwis reqnired to decide aoxi consider as to whetlier fhe persoiis filfcog appUcatioii uaader Order 22 Riile 3 of fhe Code of Civfl Procedure are the legal reprcsentatives or not, should be brought on record to rcpresent fhe estate of the deceased* Utitil such decision is taken by fhe Cowt it caonot be deeided a& to who woiild prosecute (tie case, Learaed coun^l for tiie petitioaers placed reliaace upon the decision of Apex Court m ^©8AJR iSGIT 4733, JeOxttSt Sttffww. ^tecady through JD.II& Vs. Seri^ia Sai Cenlral Trwst d» CMfccr^ in which it has beeii held in paragraph 10 & 11 whfcli rcads as under: ^^%;^..; f ih9S3& i \ '^y/II u^ -^ 10. Piluig aa applicafcioii to hrmg fh.e tegal rcpresexitatives 011 record, does xsot amousit to brixigmg the legal representatives on recoxd, When an LR appUcation is filed, the C!ourt shouM consider it aod decide wtfcefla^r llre persons named ftiercm as flie legal representatives, should be bxought on r^cprd to represent fhe estate of fhe deceas^l, Uritit siich decision by fhc Coiirt, the persons claimiag to bc fhe lcgal representatives have no right to represent fhe estate of fhe deceased, Until suoh decisionby fhe Court, tlie persons cIaiG@uhag to be fhe legal representatives have no right to represent fhe estate of the deceasedj, xior proseeute or defend tlie case. If fhere is a dispute as to who is fh.c legal representative, a decision should be rendered on such diapute* Only when fhe question oflegal reprcaesitatfere is detenimied by fhe Court aad such legal representative is brought on rccord, it caa be said tliat tiie estate of fhe deceased is represeiited. The determioation as to wiio is tlie legal represcntative imder Order 22 Rule 5 will of course be for fhe limited purpose of representation of titie estate of fhe deceased, for adjudication of fhat case. Such deteimmation for such Ibxiited purpose wffl not coufer on fhe person held to be fhe legal x^presentative^ aoy right to the property which is fhe subject inatter of fhe suit, vis-a-vis otfaer rhral claixsiants to fhe estate of the deceased. 11, The pfovisioas of Riiles 4 & 5 of Order 22 arc mandatory. When a respondent in aa appeal dies, the Court caanot simply say th.at it will hear all rival claiinante to the estate of the deceased respondeait aad proceed to dispose of fhe appeal. Nor can it miplead all persons claiYning to be legal representatives, as parties to the appeal ^dfhout decidiag who will represeiit tlie estate of fhe deceased, and procced to hear fhie appeal on merits. TIie Court caaiiot also postpone fhe decision as to who is fhe legal rcpresentative of ffae deceaaed respoadexi^ for bemg decided aloa^ wifh fhe appeal on merits. The Code clearly provides fbiat where a question arises as to whether aoy pei^oii is or is not fhe legal representative of a deceased respondent, such question shaU be detenmned by the Cozirt The Code also promdes liiat wherc one of fhe respondents dies aoid tfae xi^it to sue does not survive agaiast the siMviviag respcaidents, fhe ::T^ A'< '^ j '^^ 1 \ YJ!J ~i ^ -r. Coiirt shall, on aa application made ia fhat behalf, cause fhe legal representatives of the deceased respondent to be made parties, aad then proceed with fhe case, Thougfa Rule 5 does not specifically provide fhat detenxmiatioii of legal reprcsentative should prccede, the hearmg of the appeal on ments, Rule 4 read with Rule 11 make it clear that the appeal caii be heard only after fhe legal representatives arc brought on record, Iii view of the above judgment aad provisions of law, the matter is remitted back to the Court below for conducting enquiiy ia accordance wifh Order 22 Riile 5 of the Code ofCivil Procedure aad to detenniaie as to whefher fhe petitioner or tihe husband/rcspondeiit No.2 are entitied to prosecute the suit or if any one of fhem are entifled to prosecute fhe suit beiag the legal representative of tfae deceased. m-s It is submitted at t3ie bar by tlie counsel that the eviction suit is pendiag smce 1993, It is expected fix>m fhe court below to decide tfae present applicatiton expeditiousfy aad preferabty wifhin a penod ofone month finom fhe date of receipt of fhis order, It 1s fiirther directed tfaat the suit itself be decided withdn a period ofsix moxxths fix>m fhe date of decidiag the applicatlon under Qxder 22 Rule 3 ofthe Code of Civil Procedure, With the above obseryation, the petitioxi is dlsposed of. Sd/- Pritinker Diwaker Judge <