SM 1 12.wp.7738.10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 7738 OF 2010 WITH APPEAL FROM ORDER NO. 852 OF 2011 Smt. Nirmala Rasiklal Shah ] Age about 60 years, Occ. Household, ] R/at 465-A, Shaniwar Peth, ] Pune – 411 030. ] ....Petitioner. Versus Shri. Kanherrao Ganpatrao Patwardhan ] since deceased through L.Rs. ] 1. Shri. Krishnarao Shivram Patwardhan, ] Age 60 years, Occ. Nil. ] R/at Post Kurndwad, Dist.- Kolhapur. ] 2. Shri. Suhas Dattatray Sane ] Age adult, Occ. Not known. ] 3. Smt. Hemlata Dattatray Sane. ] Age adult, Occ. Not known, ] Nos. 2 & 3 R/at 121 Budhwar Peth, ] Pune – 411 002. ] ....Respondents. ____________ Mr. Jaydeep S. Deo for the Petitioner. Mr. Amogh P. Paralikar for the Respondent Nos. 2 and 3. CORAM: R. M. BORDE, J. DATED : OCTOBER 13, 2011. ORAL JUDGMENT: Rule. 2. Rule made returnable forthwith. By consent of the SM 2 12.wp.7738.10 parties, Appeal from Order as well as Writ Petition are admitted and taken up for final disposal. 3. The appellant/original plaintiff in Appeal from Order is taking exception to the order passed below Exhibit-92 on 10th March, 2010 in Special Civil Suit No. 96 of 1999 whereas in the Writ Petition No. 7738, the writ petitioner is challenging the order passed below Exhibit-96 on 10th March, 2010 in Special Civil Suit No. 96 of 1999. The appellant is the original plaintiff in Special Civil Suit No. 96 of 1999 presented by him against one Kanherrao Ganpatrao Patwardhan claiming specific performance of agreement to sell the disputed property executed on 19th February, 1996. The sole defendant Kanherrao Ganpatrao Patwardhan died on 29th April, 2000. He was not survived by his wife or children. It is the case of the respondent no. 1 that Shri. Kanherrao Ganpatrao Patwardhan has executed a Will where by the suit property was allegedly bequeathed to Shri. Krishnarao Shivram Patwardhan and therefore he is entitled to contest the Special Civil Suit No. 96 of 1999 as the legal representative of Shri. Kanherrao. Therefore, after demise of Kanherrao, Krishnarao was brought on record as heir and representative of the Shri. Kanherrao, Shri. Krishnarao has filed Miscellaneous Application No. 158 of 2001 SM 3 12.wp.7738.10 seeking probate of the Will executed in his favour by Shri. Kanherrao and the said application came to be dismissed. The petitioner/appellant in appeal was not aware of any other heirs of the deceased Kanherrao, as such she published an advertisement in the newspaper calling upon relatives of the Kanherrao to join the proceedings. The respondent nos. 2 and 3 tendered an application for their impleadment as the legal heirs of Kanherrao and Miscellaneous Application No. 158 of 2001 for probate was presented by Krishnarao. The respondent nos. 2 and 3 contested the Miscellaneous Civil Application filed by Krishnarao, and questioned legality and validity of the Will. The respondents on their appearance in the civil suit were impleaded as the defendants and they tendered an application in their capacity as defendant nos. 2 and 3 to stay further proceedings in the suit until disposal of the appeal presented by Krishnarao against the order passed by the Trial Court of refusing to grant probate in his favour. The application presented by the respondent nos. 2 and 3 was opposed by the appellant/petitioner. However, the Trial Court allowed the same in view of the order passed on 11th January, 2010. The respondent nos. 2 and 3 filed an application at Exhibit-92 contending therein that they had SM 4 12.wp.7738.10 never prayed for their impleadment as party defendents. They had prayed for stay of proceedings only. However, though the application was for grant of stay, without hearing the responent nos. 2 and 3, an order came to be passed for their impleadment as legal heirs of deceased. According to them, they be extended an opportunity of hearing on the application presented by them and the order passed by the Trial Court on 11th January, 2010 be reviewed. The application at Exhibit-92 presented seeking review of the order was opposed by the original plaintiff/appellant contending that the plaintiff/appellant has no objection for impleadment of the third party applicants as defendants in the suit and there is no need to stay the proceedings. The third party applicants/defendants may choose to get themselves impleaded. It is also contended that it is for the Court to conduct appropriate enquiry as to who are the legal heirs of deceased Kanherrao and pass an appropriate order. However, the Trial Court has passed an order below Exhibit-92 and recalled earlier order passed by the Court illegally. The Court has also directed to stay further the proceedings in suit. An application came to be tendered for striking out of name of third party applicants/respondents impleaded as defendants as provided under Order I Rule 10 of the SM 5 12.wp.7738.10 Code of Civil Procedure contending that they have been improperly joined. While considering the said application, the Court passed an order observing that application tendered by the third party respondents/defendants was not for their impleadment as legal heirs of deceased. However, the same is wrongly allowed by the court. The Trial Court, therefore, directed striking out names of third party applicants/respondents from the record. The order passed by the Court below Exhibit-96 is a subject matter of writ petition. 3. I have heard the arguments advcanced by the counsel appearing for both the parties. The counsel for the appellant/writ petitioner invited my attention to the provisions of Order I Rule 10 of the Code of Civil Procedure. Order I Rule 10 of the Code of Civil Procedure reads thus: “10. Suit in name of wrong plaintiff.- (1) Where a suit has been instituted in the name of the wrong person as plaintiff or where it is doubtful whether it has been instituted n the name of the right plaintiff, the court may at any stage of the suit, if satisfied that the suit has been instituted through a bonafide mistake, and that it is necessary for the determination of the real mater in dispute so to do, order any other person to be substituted or added as plaintiff upon such term as the Court thinks just.” SM 6 12.wp.7738.10 It is within the domain of the Trial Court to take a decision in respect of impleadment of the third party or striking the name of any of the party after conducting necessary enquiry. Order 22 Rule 4A provides that if it appear to court that any party who has died during the pendency of the suit has no legal representative, the Court may, on an application of any party to the suit, proceed in the absence of a person representing the estate of the deceased person, or may by order appoint the Administrator-General, or an officer of the Court or such other person as it thinks fit to represent the estate of the deceased person for the purpose of suit; and any judgment or order subsequently given or made in the suit shall bind the estate of the deceased person to the same extent as he would have been bound if a legal representative of th deceased person had been a party to the suit. 4. The question of determination of the legal representatives also needs to be decided by the Trial Court by making summary enquiry. The counsel appearing for the petitioner invited my attention to the judgment in the matter of Shivraj s/o. Ramji Paul-Shete v/s. Prayagbai w/o Mahadu Shete died-though L.Rs. reported in 1994 (1) Bom. C.R. 561. In SM 7 12.wp.7738.10 paragraph no. 6 of the said judgment, it is observed thus: “The nature of the inquiry under Order XXII, Rule 5 was explained by the Full Bench of Punjab and Haryana High Court in the case of Mohinder Kaur and another v. Piara Singh and other, as under- "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 representatives of the deceased party get the question of succession settled through a different suit and such a decision does not put an 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 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." Once we hold that the determination of the legal representative of the deceased party under Order XXII, Rule 5 is not a judgment about the heirship or right to the property and is merely for the purpose of continuation of the suit, we will also have to hold that the courts are free to pass proper orders as exigency in particular suit would require. Since the determination of the genuineness of the two Wills contrary to each other is not desirable in the summary enquiry, it would be better if one of the party is allowed to substitute the deceased plaintiff as legal representative and other claimant is added as a defendant in the suit. The Court has SM 8 12.wp.7738.10 ample power to add any party and, therefore, though the second claimant claimed to be the legal representative of the plaintiff, he can be added as defendant in the suit so that he may have opportunity to prove his case in the full length trial in that very suit and multiplicity of litigation is avoided and substantial justice is done. Code of Civil Procedure though takes care of exigencies which normally arise, circumstances may illude the imagination of rule makers and a reasonable interpretation to the procedural law is the only way out. ” 5. In the instant matter, the appellant/writ petitioner/ original plaintiff does not have any objection for impleadment of the third party applicants/as defendants in the suit. It is open for the Court to conduct appropriate enquiry as contemplated by Order XXII Rule 5 of the Code of Civil Procedure and to pass an appropriate order permitting impleadment of the legal heirs of defendants. The Court is supposed to pass an appropriate order by taking recourse to the Order XXII Rule 5 of the Code of Civil Procedure. The plaintiff/appellant herein/ writ petitioner has, specifically, contended that the plaintiff has no objection either for impleadment of respondent nos. 2 and 3 as defendants or the respondent no. 1/as defendant, who claims to be a legatee under Will of deceased Kanherrao. In these circumstances, there was no need for Trial Court to stay the proceedings. It is for the Court to make an appropriate enquiry as to who are the legal heirs of SM 9 12.wp.7738.10 deceased. The order passed below Exhibit-92 and Exhibit-96 are, therefor, required to be quashed and set aside and the same are, accordingly, quashed and set aside. The Trial Court shall proceed with the matter in consonance with the observations made in this judgment. 6. Appeal from Order is, thus allowed. So also, rule is made absolute in the writ petition. The Trial Court is directed to decide the pending suit expeditiously. (R. M. BORDE, J.)