C.R. No. 6485 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGRH C.R. No. 6485 of 2009 Date of decision: 11.11.2009 Anil Watts and others Vs. M/s Munjal Showa Ltd. and others CORAM:- HON'BLE MR. JUSTICE HEMANT GUPTA 1. Whether Reporters of Local Papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? Present: Shri C.B.Goel, Advocate, for the petitioner. Shri Sanjay Vij, Advocate, for the caveator-respondent HEMANT GUPTA,J.(oral) Challenge in the present petition is to the order passed by learned Additional District Judge, Gurgaon dated 23.9.2009 whereby an application filed by respondent No.3 to seek impleadment as legal heirs of deceased Mr. M.K..Watts was allowed. The facts in brief leading to the order passed by learned Additional District Judge are that one Mr. M.K.Watts was the owner of factory site bearing No.8 measuring 9680 sq.yards alongwith the construction and machinery etc. in Urban Industrial Estate, Delhi Road, Gurgaon. A suit for specific performance of agreement to sell dated 3.9.1984 was filed by Mrs. Usha Sharma wife of respondent No.3 herein. The said suit was dismissed by the Trial Court. However, the first appeal was allowed by the learned Additional District Judge vide order 7.4.1998. Second Appeal No. 1120 of 1998 by Mr. M.K.Watts was allowed by this Court on 30.7.2003. Special Leave Petition filed by Mrs. Usha Sharma against the aforesaid judgment stands dismissed on 5.12.2003. In the aforesaid suit M/s Munjal Showa Limited were C.R. No. 6485 of 2009 2 impleaded as defendant No.2 as Mr. M.K.Watts purportedly entered into an agreement to sell with M/s Munjal Showa Ltd. on 21.1.1987. Munjal Showa Ltd. filed a suit on 21.9.1990 for specific performance of the agreement dated 21.1.1987. Learned Trial Court dismissed the suit on 2.1.2008. During the pendency of the suit, Mr. M.K.Watts died on 30.9.2004. Wife, son and daughters of Mr. M.K.Watts were ordered to be impleaded as his legal heirs. In appeal, Mr.Ram Lubhaya Sharma, respondent No.3 husband of Mrs. Usha Sharma filed an application for impleadment as legal representative of deceased Mr. M.K.Watts on the basis of the registered will dated 20.11.1984. It is the said application which has been allowed by the First Appellate Court on 23.9.2009. Learned counsel for the petitioner has vehemently argued that Mrs. Usha Sharma having lost her claim for specific performance in a separate suit earlier, the present application by Mr. Ram Lubhaya Sharma is only to perpetuate the fraud. Mr. Ram Lubhaya Sharma has no interest in the property. Natural heirs of the deceased Mr. M.K.Watts are contesting the suit. Therefore, Mr. Ram Lubhaya Sharma cannot be permitted to be impleaded as one of the legal representative of deceased Mr. M.K.Watts. It is contended that in terms of Order 22 Rule 5 of the Code of Civil Procedure inter se disputes between the legal heirs does not operate as resjudicata and inter se disputes between legal representatives have to be established in separate proceedings. Mr. Vij, learned counsel representing respondent No.3 relies upon Full Bench Judgment of this Court reported as Mohinder Kaur and another Vs. Piara Singh and others AIR 1981 P&H 130 as also on C.R. No. 6485 of 2009 3 judgments S.Charanjit Singh and another Vs. Bharatinder Singh and others AIR 1988 P&H 123, Deepinder Kaur and others Vs. The State of Haryana 1991 PLJ 534, Bhajan Singh Vs. Subhash Chander 1992 PLJ 622 and Mehan Singh Vs. Amarjit Kaur 1994 PLJ 93 to contend that in case of rival legal representatives seeking to represent estate of the deceased, both sides should be permitted to be impleaded so as to avoid counter controversies. Having heard learned counsel for the parties at some length, I am of the opinion that order passed by the first Appellate Court suffers from patent illegality and irregularity. This is a case where Mr. Ram Lubhaya Sharma has propounded a will even when natural heirs of deceased Mr. M.K.Watts are already on record. In fact Mr. Ram Lubhaya Sharma applicant is husband of Mrs. Usha Sharma who has lost her suit for specific performance against Mr. M.K.Watts. It is not disputed that Mr. Ram Lubhaya Sharma was a general attorney of Smt. Usha Sharma and has appeared on behalf of Mrs. Usha Sharma in her previously instituted suit for specific performance as witness. Thus it is a case where there is conflict of interest of Mr. Ram Lubhaya Sharma with that of estate of Mr. M.K..Watts now represented by his widow, son and daughters. The Full Bench in Mohinder Kaur's case has held that decision under Order 22 Rule 5 of the Code of Civil Procedure, would not operate as resjudicata. Any decision in proceedings to implead the legal representatives is only directed to answer an orderly conduct of the proceedings with a view to avoid the delay in the final decision of the suit till the persons claiming to be the representative of the deceased party get the question of succession settled through a different suit and such a decision does not put to end to the litigation in that regard. It was so held C.R. No. 6485 of 2009 4 that:- “In essence a decision under Order 22 Rule 5, Civil Procedure Code, is only directed to answer an orderly conduct of the proceedings with a view to avoid the delay in the final decision of the suit till the persons claiming to be the representative of the deceased party get the question of succession settled through a different suit and such a decision does not put to end to the litigation in that regard. It also does not determine any of the issues in controversy in the suit. Besides this it is obvious that such a proceeding is of a very summary nature against the result of which no appeal no appeal is provided for. The grant of an opportunity to lead some sort of evidence in support of the claim of being a legal representative of the deceased party would not in any manner change the nature of the proceedings. In the instant case the brevity of the order (reproduced above) with which the report submitted by the trial court after enquiry into the matter was accepted, is a clear pointer to the fact that the proceedings resorted to were treated to be of very summary nature. It is thus manifest that the Civil Procedure Code proceeds upon the view of not impartig any finality to the determination of the question of succession or heirship of the deceased party”. The judgment in Deepinder Kaur's case deals with impleading of legal representatives in execution proceedings. The learned Trial Court has held that it is necessary for the legal heirs to obtain probate or succession certificate on the basis of the Will propounded. It was said order which was set aside by this Court. The issue raised is not even remotely connected with the issue raised in the present case. In Bhajan Singh's and Mehan Singh's cases the court had ordered that both sets of rival legal representatives to be brought on record. In Charanjit Singh's case the court found that instead of C.R. No. 6485 of 2009 5 dealing with the decision as to who should be impleaded as legal representative it would have been a better course if both sets of legal representatives are brought on record. The court has noticed that inter se dispute between rival legal representatives has to be independently tried and decided in separate proceedings. In the present case, the wife of respondent No.3 is a party in her own right. The applicant has appeared as a witness as general attorney in previous proceedings. Wife of respndent No.3, defendant No.2 has lost her suit for specific performance. As prospective vendee, the interest of defendant No.2 or her attorney respondent No.3 are in conflict with the interest of the owner. Thus, the respondent No.3 cannot be permitted to represent the estate of the deceased particularly in view of the fact that natural heirs of Mr. M.K..Watts are already on record. In view of the above, the order passed by the learned First Appellate Court suffers from patent illegality and irregularity and has caused manifest injustice to the petitioners. Consequently order of the learned Additional District Judge dated 23.9.2009 is set aside. Revision petition stands allowed accodingly. (HEMANT GUPTA) JUDGE November 11, 2009 RSK