CIVIL REVISION NO.1747 OF 2008 :{ 1 }: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH DATE OF DECISION: MARCH 31, 2008 Satgur Singh .....Petitioner VERSUS Sukhwinder Singh etc. ....Respondents CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH 1. Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? PRESENT: Mr. Manish Kumar Singla, Advocate, for the petitioner. **** RANJIT SINGH, J. The prayer of the petitioner for treating Issue No.2 regarding the validity of the will as preliminary issue is declined. The petitioner has impugned the same by filing the present revision petition. The facts, in brief, are that one Kartar Singh, deceased, filed a suit for specific performance and permanent injunction against respondent No.7. The said suit was dismissed on 6.8.1997. The value of the subject matter of the suit being Rs.6,50,130/-, the order, dismissing the suit was, impugned by filing RFA No.1913 of 1997 before this Court. Kartar Singh expired on 30.8.2004 during the pendency of the appeal. Respondent Nos.1 and 2, sons of late Kartar CIVIL REVISION NO.1747 OF 2008 :{ 2 }: Singh filed miscellaneous application No.1158-CI of 2005 for being impleaded as L.Rs of deceased Kartar Singh. This was on the basis of a will dated 7.11.2002. Vide order dated 11.3.2005, respondent Nos.1 and 2 were impleaded as L.Rs of Kartar Singh, appellant. On 17.1.2005, the petitioner alongwith respondent Nos.3 to 6 filed another miscellaneous application for being impleaded as L.Rs of deceased Kartar Singh on the ground that they are natural heirs of the deceased, being widow, sons and daughter/pre-deceased son of late Kartar Singh. On 19.1.2006, these applicants were also impleaded as L.Rs of appellant, Kartar Singh. On 8.3.2006, respondent Nos.1 and 2 moved an application No.3190-CI of 2006 for modification of the order dated 19.1.2006, pleading that except for respondent Nos.1 and 2, there was no other legal heir and, thus, the L.Rs impleaded vide order dated 19.1.2006 had no right to claim themselves to be the L.Rs of deceased Kartar Singh. On 19.5.2006, this Court directed that this application be put up at the time of regular hearing of the appeal. During the pendency of the appeal, notification was issued, according to which, the Regular First Appeal, could be heard by District Judge, Sangrur, as well and accordingly the same was sent back to him for adjudication. The Additional District Judge, Sangrur, accepted the appeal on 26.7.2007, which is now impugned by respondent No.7 through R.S.A. No.3205 of 2007. It appears that application No.3190-CI of 2006, which was ordered to be heard with the main appeal, has not been decided by the Additional District Judge, Sangrur, while deciding the appeal. On 24.8.2007, respondent Nos.1 and 2 have moved an application before the CIVIL REVISION NO.1747 OF 2008 :{ 3 }: Additional District Judge, Sangrur, for deciding the said application. The petitioner filed a reply, contesting that this application was not maintainable. It is claimed that respondent Nos.1 and 2 thereafter did not press the said application and this as such, shall be deemed to have not been pursued. Still, Additional District Judge had framed an issue in this regard to the effect that whether respondent Nos.1 and 2 alone are entitled to the entire suit property on the basis of a will and whether such an application is maintainable or not. It is in this background, the petitioner filed an application that Issue No.2 in regard to maintainability be decided as a preliminary Issue. This prayer of the petitioner has been declined, which is impugned in the present revision petition. It is not disputed before me that this Court had deferred the decision on the application No.3190-CI of 2006 at the time of regular hearing. It could not be disputed before me that while deciding the appeal, Additional District Judge has not decided this application. The grievance of the petitioner is that such an application would not be maintainable before Additional District Judge, Sangrur, as this Court had directed the petitioner and respondent Nos.3 to 6 to be impleaded as L.Rs of late Kartar Singh and this order can not be impugned before Additional District Judge. At the same time, the application for modification of the order was ordered to be heard alongwith the main appeal, which has not been decided. Additional District Judge, Sangrur has only declined the prayer of the petitioner for treating the issue regarding maintainability of the application as a preliminary issue but has otherwise not adjudicated the same on merit. He may well come to a conclusion that such application would CIVIL REVISION NO.1747 OF 2008 :{ 4 }: not be maintainable before him in view of the fact that the petitioner and respondent Nos.3 to 6 were impleaded as L.Rs by this Court. The Court has only decided to take up both the issues together and decide in one go, rather than deciding the issue of maintainability as a preliminary issue. Appropriately, this application was required to be decided alongwith the appeal, which has not been done. Even if it is to be held that the application before the Additional District Judge, Sangrur was not maintainable the same was bound to be adjudicated alongwith the appeal. No legal and valid reasons have been advanced by the learned counsel for the petitioner in support of his submission that this issue is required to be treated as a preliminary issue. The submission that the will is required to be decided separately, on the basis of law laid down in Pardeep Singh Vs. Smt.Usha Sood, 2002 (1) Civil Court Cases 612 (P&H), would not be of much assistance in this case. Here the issue in regard to the maintainability of the application is to be gone into alongwith the validity of the will and prayer in the application was only for treating this issue to be a preliminary one. The judgment in the case of Pardeep Singh (supra), as such is of no help to decide this issue. The counsel has then referred to the case of Daljit Singh Vs. Bhupinder Singh, 2004 (1) Civil Court Cases 352 to urge that genuineness of the will is not to be finally determined as an inquiry for determination of legal representative is summary in nature. This issue again is not arising in the instant case. The application for being impleaded as L.Rs already stand allowed. Thereafter the application was moved by some of the L.Rs for modifying the order, which was deferred for hearing till the time of final decision of the CIVIL REVISION NO.1747 OF 2008 :{ 5 }: appeal. The issue is whether the aspect of maintainability of this application is to be treated as a preliminary issue or not and not whether enquiry in regard to the will is to be gone into. It can not be disputed if the matter has not been remanded back to the Court of District Judge, this application was clearly maintainable. The respondent can genuinely submit that this Court should have decided this application even if the case was to be sent back for deciding the appeal by the District Judge. Again, the ratio of the law laid down in this case does not provide any guidance in regard to the fact whether any particular issue is to be decided as a preliminary issue. No prejudice is going to be caused to any of the parties in case, this issue is not treated as a preliminary issue and decided together with the issues that have been framed in this case. The impugned order, as such, would not call for any interference on the ground of any error or infirmity, which can be gone into in exercise of revisional jurisdiction. The revision is accordingly dismissed. March 31, 2008 ( RANJIT SINGH ) khurmi JUDGE