SBCWP No.6354/2008 Smt. Maina Devi Vs. Rajeshwari & Ors. 1 SBCWP No.6354/2008 Smt. Maina Devi Vs. Rajeshwari & Ors. DATE OF ORDER : - 23.1.2009 HON'BLE MR. PRAKASH TATIA, J. Mr.Sajjan Singh, for the petitioner. Mr.Surendra Surana, for the respondents. <><><> Heard learned counsel for the parties. The petitioner is aggrieved against the order dated 11th July, 2008 as the application filed by the plaintiff through her power of attorney holder Smt. Bharti Soni for limited relief was rejected after allowing the application filed under Order 22 Rule 4 CPC. According to the applicant-plaintiff she submitted application for taking on record the legal representatives of her own husband defendant Dau Dayal who died on 30th June, 2007. Because of death of said Dau Dayal her daughter Bharti Devi, who was power of attorney of the plaintiff also became entitled to be impleaded as party in the suit as legal representative of defendant Dau Dayal as he was father of the said Bharti Devi. The plaintiff's SBCWP No.6354/2008 Smt. Maina Devi Vs. Rajeshwari & Ors. 2 contention is that since Smt. Bharti Devi is also power of attorney of plaintiff, therefore, remaining legal representative of Dau Dayal may be impleaded as defendant-whereas Bharti Soni, who is power of attorney of plaintiff be impleaded as plaintiff instead of defendant. The trial court refused said prayer on the ground that Smt. Bharti Soni can became party in the suit as legal representative of her father Dau Dayal, but as defendant and not as plaintiff. Learned counsel for the respondent-defendant submitted that under Order 22 Rule 4 CPC only defendant's legal representatives are taken on record, therefore, they can be impleaded as defendant and not as plaintiff. I considered the submissions of learned counsel for the parties. In a case of substitution where the party should be placed is required to be decided by the court after appreciating the facts of the case. In a case where defendant dies out of several defendants and his legal representatives have common interest with the plaintiff and SBCWP No.6354/2008 Smt. Maina Devi Vs. Rajeshwari & Ors. 3 are seeking to be impleaded as plaintiff in place of defendant then that relief can be granted. In this case, the fact situation is much more different and better in favour of the petitioner because of the reason that the plaintiff filed the suit through her daughter-power of attorney holder Smt. Bharti Soni. Obviously Smt. Bharti Soni cannot disown her own pleading submitted in the plaint under her own signature though as power of attorney of her mother- plaintiff. The legal representatives may have interest common to the deceased and may not have same as of the defendant. In this case, it is clear that Smt. Bharti Soni – the legal representative of defendant herself filed the application under Order 22 Rule 4 CPC under her own signature because of death of Dau Dayal – her father then she can be impleaded as party alognwith the plaintiff. That was the just and proper prayer as she could not have contested the suit filed with her own signature. In view of the above reason, the writ petition is allowed and the order dated 11th July, 2008 is set aside. Smt. Bharti Soni be impleaded as plaintiff in her own name, SBCWP No.6354/2008 Smt. Maina Devi Vs. Rajeshwari & Ors. 4 in the capacity of legal representative of deceased Dau Dayal alongwith the plaintiff, her mother. (PRAKASH TATIA), J. c.p.goyal/-