IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL First Appeal from Order No. 763 of 2001 Murti Bhagwan Sri Laxmi Narain Ji and another ….. Petitioner Versus Sri Sudarshan Dharam Setu Samit and others ..… Respondents Hon’ble Tarun Agarwala, J. A suit was filed by Murti Bhagwan Sri Laxmi Narain Ji through his Swami Sri Rangacharya against Shri Sudarshan Dharam Setu Samiti and eleven others for permanent injunction restraining the defendant from interfering in the functioning of the plaintiff as sarvarakar. The said suit was decreed and the defendants were restrained in terms of the relief claimed by the plaintiffs. The defendants, being aggrieved, filed a first appeal and, during its pendency, one of the appellants Raghavacharya died. Accordingly, an application under Order 22 Rule 3 and 4 CPC was filed for appropriate substitution. The petitioners filed their objections, and the lower appellate court, after hearing the parties, allowed the application under Order 22 Rule 10 CPC and directed appropriate substitution to be incorporated. While allowing the substitution application, the trial court held that Shri Swami Ananta Charya is the sarvarakar of the defendant society. The plaintiff being aggrieved by the said order, filed the present appeal under Order 43 Rule 1 (l) read with Order 22 Rule 11 of the C.P.C. Heard Shri V.K. Kohli, the learned Senior Counsel assisted by Shri I.P. Kohli, the learned counsel for the petitioners and Shri Siddhartha Singh, the learned counsel for the opposite parties. The learned Senior Counsel for the plaintiff-petitioners has contended that the finding recorded by the lower appellate court allowing the substitution application will have a bearing with the case, inasmuch as, the finding has been given that Shri Swami 2 Ananta Charya is now the sarvarakar of the Samiti which fact is highly disputed since such finding will allow Swami Ananta Charya to take over the Samiti of the petitioner. The learned counsel submitted that when the heirs of the deceased was disputed, the Court below should have relegated the matter under Order 22 Rule 5 of the C.P.C. in order to determine as to who is the legal representative of the deceased. Prima facie, the arguments seems to be attractive but the Court does not find any merit in such arguments. For facility, Order 22 Rule 5 of the C.P.C. is extracted hereinbelow:- “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 therefore, and the Appellate Court may take the same into consideration in determining the question.] A perusal of the said provision would show that the question which is required to be determined under Order 22 Rule 5 is between the rival legal representatives of the deceased and is not a dispute between the rival parties to the suit. In the present case, apart from Swami Ananta Charya, no other person has come forward claiming to be the successor of the deceased Raghavacharya. The petitioner is the plaintiff who is a rival party cannot be permitted to question the heirship of the deceased Raghavacharya in proceedings under Order 22 of the C.P.C. This view of the Court is fortified by the decision of Punjab and 3 Haryana High in Harbans Singh Vs. Manjit Inder Kaur, 2004 (3) PLR 499. The Court further finds that an inquiry into the heirship is not the determining factor in deciding whether a person is or is not a legal representative for the purpose of proceedings before the Court. What is required to be considered is whether the person claiming to represent the estate of the deceased for the purpose of lis has sufficient interest in carrying on the litigation and is not an imposter. If there were any rival claims, it would have been necessary to decide the dispute under Order 22 Rule 5 to find out who is the person entitled to represent the estate for the purpose of a particular proceeding but in the present case, there is no such rival claims. Even otherwise, such determination does not result in determination of inter se right to succeed the property, inasmuch as, such right to succeed to the property has to be established in an independent proceedings. In the opinion of the Court, an order passed under Order 22 does not determine the rights of the parties claiming as legal representatives. Consequently, any finding given by the lower appellate court allowing the substitution application cannot be utilized for any other purpose, namely, for the purpose of claiming title, inasmuch as, separate proceedings for that purpose is required to be taken. In the light of the aforesaid, the Court does not find any merit in the appeal. It is accordingly dismissed. (Tarun Agarwala, J.) Dated 29th November, 2011 Shiv 4