IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No. (MS) 1588 of 2011 Anju Tyagi & another …Petitioners Versus District Judge, Haridwar and others ….Respondents Present : Mr. K. S. Rawal, Advocate holding brief of Mr. Siddhartha Singh, Advocate for the petitioners. Mr. H. M. Raturi, Learned Standing Counsel for the State of Uttarakhand. Sudhanshu Dhulia, J. (Oral) Heard Mr. K. S. Rawal, Advocate holding brief of Mr. Siddhartha Singh, Advocate for the petitioners, and Mr. H. M. Raturi, Standing Counsel for the State of Uttarakhand. The petitioners were plaintiffs in a suit before the court below being suit no. 93 of 1999. The suit was filed by Smt. Kailashwati in which the defendants were Savita Devi and Satish Kumar Tyagi. During the pendency of the aforesaid suit, plaintiff Smt. Kailashwati passed away in the year 2006. Subsequently an application was moved by the applicants Smt. Anju Tyagi and Master Vansh (present petitioners), under Order 22 Rule 3 for their substitution. This substitution application was allowed by the trial court vide order dated 12.10.2009. At the relevant time objections were made by the defendants on the said substitution application on the grounds that applicant Anju Tyagi is not the biological daughter of the plaintiff Kailashwati, nor has she been adopted by her. She is the daughter of one lady by the name of Kanta who is the sister of the plaintiff Kailashwati (deceased). Smt. Anju Tyagi though made her claim for substitution on the basis of a will in her favour 2 by the testator (i.e. the earlier plaintiff). The substitution application, however, was allowed on the considerations that the suit must continue. There was no other consideration before the Court for allowing the said substitution application. This is clearly evident from the order dated 12.10.2009 by which the substitution application was allowed. It is further to be noted that there was no inquiry done on the said substitution, under Order 22 Rule 5, as the learned trial court was of the view that under the facts and circumstances of the case no inquiry needs to be done under Order 22 Rule 5. Regarding the objections of the defendants on the said substitution application, it has been categorically stated in the order that veracity and validity of the Will is still to be considered and all that has been considered is the issue of substitution. Whether the concerned Will is genuine or forged shall be determined when these issues are framed and adjudicated upon in the trial. It is also necessary to state that this order dated 12.10.2009 has also attained finality, as it was not challenged by the plaintiffs before any other Court. Subsequently thereafter when issues were to be framed, one issue was regarding the genuineness of the Will. The plaintiff at that stage moved an application before the trial court under Order 14 Rule 5 of CPC. Order 14 Rule 5 of CPC reads as under: “5. Power to amend and strike out issues.- (1) The Court may at any time before passing a decree amend the issues or frame additional issues on such terms as it thinks fit, and all such amendments or additional issues as may be necessary for determining the matters in controversy between the parties shall be so made or framed. (2) The Court may also, at any time before passing a decree, strike out any issues 3 that appear to it to be wrongly framed or introduced.” Issue no. 7 on which objections were raised by the plaintiff reads as follows:- “7. Whether Kailashwati had executed a valid Will regarding the disputed property dated 7.6.2006 in favour of Smt. Anju? If yes, its effect?” The argument of the plaintiff-applicant was that since she has already been substituted on the basis of the “Will”, its veracity stands already proved and hence the issue has wrongly been framed, and therefore liable to be deleted. On this application, the trial court passed a well considered order on 12.5.2011. While rejecting the said application the court came to the conclusion that it had earlier been held while allowing the substitution application that the issue regarding the veracity and the genuineness of the Will shall be separately framed and adjudicated upon. Moreover, the considerations for substitution under Order 22 Rule 3 is entirely different and merely because the plaintiff has been substituted it would not mean that the Will on the basis of which plaintiff has been substituted also stands proved. Consequently the application of plaintiff under Order 14 Rule 5 was rejected, vide order dated 12.5.2011. Thus aggrieved the plaintiffs moved a revision before the learned District Judge, Haridwar in Civil Revision No. 57 of 2011. This revision has also been dismissed vide order dated 13.7.2011 on the same considerations and grounds as it was dismissed earlier by the trial court. The learned District Judge though has further stated in its order that this kind of applications (i.e. application under Order 14 Rule 5) has been moved purely as a dilatory 4 tactics. Thus, the order of the trial court was upheld, and a fine of `5000/- was also imposed on the applicant/plaintiff. Not satisfying with the order passed by the court below the plaintiffs have filed a writ petition invoking the extraordinary jurisdiction of this Court under Article 227 of the Constitution of India. Learned counsels for the petitioners Sri Siddharth Singh yesterday and today Sri K. S. Rawal have relied upon a decision of Hon’ble Supreme Court in Dashrath Rao Kate Vs. Brij Mohan Srivastava, reported in (2010) 1 SCC (Civ) 86 wherein the Hon’ble Supreme Court, on the peculiar facts and circumstances of that particular case, had held that where a detail enquiry has already been done by the court under Order 22 Rule 5 CPC regarding the veracity of the Will and where the entire evidence has been examined and the Will has been proved that order attains a finality and therefore it will be wrong to say that the Will still needs to be proved afresh. Clearly the facts of the case on which the said rulings are given by the Hon’ble Apex Court are not present in this case. The ratio of a case depends upon the facts of that case. This position has also been clarified by the Hon’ble Apex Court in the said judgment while acknowledging the settled position under Order 22 Rule 5 of CPC that such inquiry is only summary in nature and as a general rule when a Will has to be proved it has to be proved by way of an evidence in a trial. In other words, the Hon’ble Apex Court had taken the said view as an exception, on the peculiar circumstances of the case, where earlier a detail enquiry at the time of substitution had already taken place under Order 22 Rule 5 C.P.C. Moreover in the present case, it is clearly evident from order dated 12.10.2009 that there is no enquiry 5 done while substituting the plaintiffs/petitioners. This case is therefore clearly distinguished on facts. The facts as they were before the Hon’ble Apex Court in Dashrath Rao Kote case (supra) are not present in the present case. In the said case before the Hon’ble Apex Court, which is being so heavily relied upon by the petitioner, the facts and more particularly the proceedings adopted in that case before it ultimately reached the Hon’ble Apex Court are entirely different than the present one. In the said case, a suit for eviction was filed by Ms. Sukhibay. During the pendency of the said case Sukhiabai died and substitution was sought to be made on the basis of a “Will” executed by deceased Sukhiabai. In the said case, the High Court remanded the matter to the trial court to decide as to who is the legal representative of deceased Sukhiabai, as this had to be determined first. A detail enquiry thereafter took place in the suit and it was finally determined by the trial court, after considering the entire evidence in detail that the appellant (in that case named Dashrath Rao Kote) was the legal representative of Sukhiabai. It was for this reason that when the matter was again re-agitated as to who shall be the legal representative, the Hon’ble Apex Court had held that a detail proceeding in such matter is not required. It was stated thus:- “21. …However, it could not be expected that when the question regarding the will was gone into in a detailed enquiry, where the evidence was recorded not only of the appellant, but also of the attesting witness of the will and where these witnesses were thoroughly cross-examined and where the defendant also examined himself and tired to prove that the will was a false document and it was held that he had utterly failed in proving that the document was false, particularly 6 because the document was fully proved by the appellant and his attesting witness, it would be futile to expect the witness to lead that evidence again in the main suit.” The Hon’ble Apex Court has further held :- “29. Therefore, it is clear that at least insofar as the suit in the present case is concerned, the question regarding the appellant’s right to represent was closed. There could be a second suit, questioning his entitlement on the basis of will, but admittedly, there is no such challenge by anybody to his status as a legatee of Sukhiabai. Insofar as the suit in the present case is concerned, the question was finally decided under Order 22 Rule 5 CPC and in the same suit in could not be reagitated. Obviously, the impugned judgment is incorrect when it holds that the appellant-plaintiff had to lead fresh evidence all over again to prove his status on the basis of the will, which was held to be proved in the enquiry under Order 22 Rule 5 CPC.” It is these observations which are relied upon by the counsels for the petitioners Sri Siddharth Singh and Sri K. S. Rawal. However the facts of the case in which the aforesaid decision was given by the Hon’ble Apex Court are totally different from the case in hand. Order 22 Rule 5 of C.P.C. reads as follows:- “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 therefor, and the Appellate Court may take the same into consideration in determining the question.]” 7 Under the aforesaid provision the determination of a question as to whether a person is or is not a legal representative of a deceased plaintiff or a deceased defendant has to be determined by the Court. Normally, such determination is of a summary nature. It is done with a sole intention of an orderly conduct of the proceedings with an intention to avoid delay in final decision of the suit. Same was the intention of the trial court while substituting the present petitioner in the suit. There was nothing more or nothing less than such an object. The claim of the petitioners that by their substitution the veracity of the “Will” ipso facto stands proved is wholly erroneous. Writ petition is totally devoid of merits and is liable to be dismissed and is hereby dismissed. No order as to costs. (Sudhanshu Dhulia, J.) 04.08.2011 Kuldeep