[2009] 15 (ADDL.) S.C.R. 643

DASHRATH RAO KATE A - f v.

BRIJ MOHAN SRIVASTAVA (Civil Appeal No.1621 of 2004)

NOVEMBER 03, 2009 B

[MARKANDEY KAT JU AND V.5. SIRPURKAR, JJ.]

l Code of Civil Procedure, 1908- Or.22, r.5 - Eviction suit - Original owner died - Appellant filed application for impleadment as LR of original owner on basis of Will c executed by her - Application allowed - Respondent-tenant filed Revision - High Court remanded the case to trial Court

\_ with direction to determine and substitute the legal heir of original owner - Full-fledged inquiry conducted by trial Court under Or. 22, r. 5, whereafter said Will held proved and D

't appellant brought on record as LR of original owner - Order

____ ,.- not challenged - Parties thereafter led evidence and trial court . decreed the eviction suit on ground contemplated u/s.12(1)(c) and 12(1)(e) of the Act-Order upheld in appeal - High Court,

- however, set aside eviction order holding that inquiry under E

Or. 22, r. 5 was of summary nature and limited only to determination of right of appellant to be impleaded as LR of ... original owner, hence, any finding in that inquiry was not > binding on respondent at final stage of suit and appellant was required to again prove the Will in order to establish his F ownership - Whether appellant had to lead fresh evidence all over again to prove his status on basis of Will, which was held proved in enquiry under Or.22, r.5 - Held, No - Once the Will

was held proved, and in the same suit, further evidence was led, there was no point on part of appellant to repeat all his G evidence all over again - The question was finally decided "'

_. under Or. 22 r. 5 and in the same suit, it could not be reagitated - Moreover, respondent could not have challenged the Will at all as he was an utter outsider and had no interest

643 H

A in the property as the owner - M.P. Accommodation Control

""" Act - s.12(1)(c) and (e).

In an eviction suit under M.P. Accommodation Control Act, appellant filed application for impleadment

B as legal representative of 'S', the original owner of the house, who had since deceased, on basis of a Will executed by her. The application was allowed. Against the impleadment, respondent-tenant filed Revision, on

{. which the High Court remanded the case to trial Court c with direction to determine and substitute the legal heir of 'S'.

Full-fledged inquiry was conducted by trial Court under Or. 22, r.5, CPC, whereafter the said Will was held to be proved and the appellant was brought on record D as legal representative of '5'. The order was not

challenged and it became final. The parties thereafter led 1 evidence and the Trial Court decreed the eviction suit on

ground contemplated under Sections 12(1)(c) and 12(1)(e) of the M.P. Accommodation Control Act. The order was E upheld in appeal.

On second appeal, the High Court set aside the eviction order holding that inquiry under Or.22, r.5, CPC was of the summary nature and was limited only to the l

F determination of the right of appellant to be impleaded as the legal representative of 'S', hence, any finding in that inquiry was not binding on respondent at final stage of the suit and appellant was required to again prove the Will in order to establish his ownership. Hence the present

G appeal.

Allowing the appeal, the Court

HELD: 1.1. The view of the High Court that the Will had to be proved again, is incorrect. Normally, an enquiry

DASHRATH RAO KATE v. BRIJ MOHAN SRIVASTAVA645

under Or.22 r.5, CPC is of a summary nature and findings A

... ). therein cannot amount to res judicata, however, that legal position is true only in respect of those parties, who set up a rival claim against the legatee. [Paras 15 and 16)

[656-A-C]

1.2. In the present case, when the question regarding B

the Will was gone into in a detailed enquiry, where the evidence was recorded not only of the appellant, but also of the attesting witness of the Will and where these witnesses were thoroughly cross-examined and where c the respondent also examined himself and tried to prove that the Will was a false document and it was held that he had utterly failed in proving that the document was false, particularly because the document was fully proved by the appellant and his attesting witness, it would be D futile to expect the witness to lead that evidence again in the main suit. [Para 16) [656-E-G]

)- ... 1.3. It was at the instance of the High Court in the revisional jurisdiction that the direction was given that the Trial Court should first decide as to who could be the E legal representative of 'S' and after complete enquiry, the • Trial Court held the Will to be proved. The Will was not only attacked by the appellant on its proof, but also on ... - >.

merits, inasmuch as the respondent went on to contend

r before the Trial Court during that enquiry that the Will F was unnatural, unfair and was executed in doubtful circumstances. The Trial Court, however, rejected this contention. On the other hand, the Trial Court found on

). merits that the appellant was living with 'S' and she had adopted him orally. [Para 16) [656-G-H; 657-A-B] G 1.4. Clear cut findings were given by the High Court .... that from the evidence of PW-2, the attesting witness, it was clear that 'S' had signed in his presence and he had also signed in presence of 'S' and had also seen the other attesting witness signing the Will and attesting the same.

A Not only this, but the Trial Court also wrote a finding that the objection raised b, y the respondent that 'S' was not ....,. in a position to understand the Will on account of her . poor physical condition, waS' lso rejected by the Trial

Court. U was also noted that the Will was executed six

B years prior to her death and as such, there was no question of 'S' being suffered with any mental or physical disability for executing the Will. Therefore, it is on this basis that the Will was held to be proved. Once this was the position and in the same suit, the further evidence was ·~ c led, there was no point on the part of the appellant to repeat all this evidence all over again. [Para 17] [657-C- F]

1.5. On evidence in the present case, the respondent did not do anything and did not even challenge the D evidence of the appellant that he had become owner of the Will. Merely because the evidence of respondent and PW-2 was not repeated all over again, it cannot be held i that the appellant could be non-suited on this ground. --- [Para 17] [658-B-C] E 1.6. The question regarding the appellant's right to represent was closed. There could be a second suit, questioning his entitlement on the basis of Will, but, there is no such challenge by anybody to his status as a < legatee of 'S'. Insofar as the suit in the present case is A F concerned, the question was finally decided under Order •

22 Rule 5, CPC and in the same suit, it could not be reagitated. Obviously, the impugned judgment is incorrect when it holds that the appellant/plaintiff had to lead fresh

G evidence all over again to prove his status on the basis of the Will, which was held to be proved in the enquiry under Or.22, r.5, CPC. [Para 18] [660-E-G]

~ . ...,

1.7. Moreover, the tenant-respondent could not have challenged the Will at all. He was an utter outsider and H had no interest in the property as owner. Indeed, from the

DASHRATH RAO KATE v. BRIJ MOHAN SRIVASTAVA 647

, pleadings and evidence, it is clear that tenant-respondent A _.... f has not even ventured to claim any rival interest against the appellant. [Para 19] [660-G-H; 661-A]

Suraj Mani & Anr. vs. Kishori Lal AIR 1976 HP 74; Vijayalakshmi Jayaram vs. M.R. Parasuram AIR 1995 A.P. 8 351 and Mohinder Kaur & Anr. vs. Piara Singh & Ors. AIR 1931 Punjab & Haryana 130, distinguished.

Kalyanmal Mills Ltd., Indore vs. Voli Mohammed AIR

I 1965 MP 72; Raghnath Singh Anar Singh vs. Gangabai (D) thr. L.R. Bhuwan Singh AIR 1961 MPLJ 398; Mahendra c Dhapu & Ors. vs. Ram Avtar & Ors. 1923 AIR Nagpur 209; Girja Dutt Singh vs. Gangotri Datt Singh AIR 1955 SC 346; Shaligram Bhagoo Kunbi & Anr. vs. Mt. Dhurpati W/o Shamrao Kunbi AIR 1939 Nagpur 147; Tarachand vs. Mt.

Janki AIR 1916 Nag. 89; Raoji Bhikaji vs. Anant Laxman D 1918 (5) AIR Born 175; Raj Bahadur vs. Narayan Prasad

~ 1926 (13) AIR All. 439 and Antu Rai vs. Ram Kinkar Rai 1936 ...

(23) AIR All. 412, referred to .

---# Case Law Reference : E

AIR 1976 HP 74 distinguished Para 7

AIR 1965 MP 72 referred to Para 7 -- ~

AIR 1961 MPLJ 398 referred to Para 7

1923 AIR Nagpur 209 referred to Para 14 F

AIR 1955 SC 346 referred to Para 16

AIR 1995 A.P. 351 distinguished Para 18

AIR 1931 P & H 130 distinguished Para 18 G

, ... + AIR 1939 Nagpur 147 referred to Para 18

AIR 1916 Nag. 89 referred to Para 18

1918 (5) AIR Bom 175 referred to Para 18

1926 (13) AIR All. 439 referred to Para 18

1936 (23) AIR .All. 412 referred to Para 18

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1621 of 2004.

From the Judgment & Order dated 04.10.2002 of the High Court of Madhya Pradesh Bench at Gwalior ir, i Civil Second Appeal No. 390 of 1998. ·

Avneesh Garg, Anshul Singh, Ashok K. Mahajan, for the Appellant.

Jagjit Singh Chhabra, Lakhan Singh Chauhan, Dr. Kailash

0 Chand, for the Respondents.

The Judgment of the Court was delivered by

V.S. SIRPURKAR, J. 1. The judgment of the High Court, allowing the Second Appeal is in challenge by way of this E Appeal. The Second Appeal was filed by the respondent/ defendant challenging the judgment of the Appellate Court, whereby the Appellate Court had confirmed the decree passed by the Trial Court.

The High Court framed two questions of law, they were:

"(1) Whether the Court below erred in law in treating the finding recorded in the proceedings under Order XXll Rule 5, CPC to be binding and omitting to decide the question in regard to the locus standi and entitlement of the plaintiff on merits considering the specific pleas urged by the defendant in the written statement subsequent to the substitution of the new plaintiff? and;

.. )- • \

(2) Whether the Court below erred in law in granting a A decree on the basis of the ground contemplated under Section 12 (1) (c) of the M.P.

Accommodation Control Act even though the alleged disclaimer could not be taken to be anterior to the filing of the suit?" B

2. Two other substantial questions proposed by the appellant (respondent herein) before the High Court by the respondent herein were:

"(1) Whether the defence contained in the written C statement did constitute a ground under Section 12

(1) (c) of the M.P. Accommodation Control Act?

(2) Whether the ground under Section 12 (1) (c) is available to a derivative title holder?" o

3. The High Court, however, took into consideration the first question of law and held that if that question of law was answered in favour of the appellant (respondent herein), then the Second Appeal would have to be allowed in favour of the tenant-respondent. It is only on that ground that the appeal came E to be allowed. In paragraph 7 of the impunged judgment, the High Court expressed that the gist of the first question was whether the evidence recorded by the Court below before allowing the application under Order 22 Rule 5 of the Code of Civil Procedure (hereinafter referred to as 'CPC', for short) F could be looked into also for passing a final decree against the appellant-defendant (respondent herein). It, however, observed that if that evidence was ignored, then the plaintiff (appellant herein) had not led any evidence to show that he had locus standi to continue the suit.

4. Few facts would have to be considered. Sukhiabai [sometimes referred to as Sankhyabai] who was the sister of the grandfather of the appellant/plaintiff, owned the house. She was issueless and the appellant/plaintiff was brought up by H

A S, ukhiabai and was living with her. The house in dispute was

lt out to the respondent herein as a monthly tenant and a written reht note was executed for that purpose. An application came to be filed initially in the year 1990 vide case No. 125/ 84-85/90-7 before the Rent Control Authority for eviction B against the present respondent. That eviction application was

allowed by the Rent Control Authority and hence a Revision came to be filed vide C.R.No.198/96 in the High Court. It was during the pendency of this Revision that Sukhiabai died. The respondent impleaded one Arun and Ramesh claiming c themselves to be class I heirs of Sukhiabai and eventually the Revision was allowed by the High Court and the High Court remanded the case to the Civil Court and directed that the questions as to whether intervention could be sought on the basis of the Will and as to whether the respondent was entitled

0 to continue the suit, would have to be gone into by the Trial Court. Upon remand, the suit was numbered as 119-A/96 before the Civil Judge, Gwalior. The appellant/plaintiff moved an application for amendment of the plaint and that amendment was allowed. Against that, the present respondent filed Civil Revision No.91/97, while deciding which, the High Court E directed that the question of legal representative of deceased Sukhiabai had to be determined first and after determining the rights of legal representative, a proper party has to be impleaded as the legal representative and the party so impleaded as legal representative would alone have the right F to amend the plaint.

5. The present appellant then filed an application to bring himself as the legal representative on record on the basis of the Will which was executed by Sukhiabai in his favour on G 26.03.1990. The appellant/plaintiff examined one Prabhakar Rao as PW-2 on 01.09.1997. After due inquiry, the application of the present appellant was allowed by the Trial Court and that is how the present appellant was brought on record in place of Sukhiabai. This order was not challenged and it became final.

---"'(.

6. The parties thereafter led evidence and on that basis A

f the Trial Court decreed the. suit by its judgment dated

22. 01 : 1998. That was challenged by way of an appeal before the Additional District Judge, Gwalior, who dismissed the appeal by judgment dated 15.05.1998. These concurrent findings thereafter were challenges before the High Court and B the High Court has upset the concurrent findings and has proceeded to dismiss the suit. It is this judgment which has fallen for our consideration.

7. It is clear from the findings of the Trial Court and c Appellate Court that the suit has been allowed on the ground of Sections 12 (1) (c) and 12 (1) (e) of the M.P.

Accommodation Control Act. The High Court has accepted the arguments of the respondent herein that in spite of the fact that

'f the appellant/plaintiff was brought on record as legal I D representative of Sukhiabai on the basis of the Will, yet he should have led more evidence to prove the Will in ordr to

~ prove that he had become owner on the basis of the testamentary succession of the concerned house. In short, the High Court came to the conclusion that since the inquiry under Order 22 Rule 5, CPC was of the summary nature and was E limited only to the determination of the right of the appellant herein to be impleaded as the legal representative of Sukhiabai, any finding given in that inquiry would not be binding :- on the defendant (respondent herein) at the final stage of the )._ ...... suit and the plaintiff (appellant herein) would have to again F prove the Will in order to establish his ownership vis-a-vis the concerned premises. The High Court went on to hold that since the title of the plaintiff (present appellant) was based on the Will and it was disputed by the defendant (present respondent), therefore, the appellant/plaintiff had to independently prove his G title. For that purpose the evidence led at the time of inquiry

~ _) under Order 22 Rule 5, CPC would be of no consequence. The High Court then relied upon on the law laid down in Suraj Mani & Anr. vs. Kishori Lal [AIR 1976 HP 74], wherein it was observed that the evidence recorded during the inquiry under H

A Order 22 Rule 5, CPC could not be equated with the evidence

recorded at the time of decision on merits. Another judgment .. relied upon was Kalyanma/ Mills Ltd., Indore vs. Voli Mohammed [ATR 1965 MP 72]. The third decision relied and

l .

followed by the High Court was Raghnath Singh Anar Singh B vs. Gangabai (DJ thr. L.R. Bhuwan Singh [AIR 1961 MPLJ 398]. The High Court then proceeded to reject the argument on behalf of the appellant/plaintiff that this was only a suit for the ejectment under the M.P. Accommodation Control Act and the respondent/defendant being an outsider could not have .... c challenged the validity of the partition. On merits, all that was required to be seen was as to whether the appellant herein had been properly brought on record as legal representative of Sukhiabai and if that was so, there was no question of nonsuiting the appellant/plaintiff on the basis that the Will was n9t proved independently. The High Court also went on to record ,> D a finding that the appellant herein was not a family member of

Suktliabai as she was not survived by any class I heir. In short, the High Court held that the Will was not proved independently, ;. though on its basis, the appellant/plaintiff was allowed to be

E brought as a legal representative of Sukhiabai, and proceeded to dismiss the suit.

8. We are unable to agree with the reasoning of the High Court.

9. It is an admitted position that when the Civil Revision ,\: F was pending before the High Court at the instance of the tenant- ...

respondent, it was filed initially only against one Ramesh and Arun Kate, since Sukhiabai had already died after the order passed in her favour. That Civil Revision was allowed by the

G High Court and the High Court directed to convert the matter into a suit under M.P. Accommodation Control Act. That is how the original application for eviction was transferred to the Civil . .

~ .._, Court for hearing. It was before the Civil Court that the present appellant filed an application for being impleaded and the same

H was allowed without any investigation. The said impleadment

was claimed on the basis of a will by Sukhiabai in favour of A the appellant. In the Revision No. 91 of 1997 against this impleadment, the High Court directed the Trial Court to decide as to who is the legal heir of Sukhiabai and to substitute such a person as legal heir. In pursuance of that, a full fledged inquiry was conducted by the Trial Court, wherein three witnesses 8 came to be examined by the present appellant to establish the will. In that enquiry, the Trial Court framed a question whether

) will was written by Sukhiabai and whether on the basis of the said will, appellant Dashrath Rao was her legal representative in this case. One Prabhakar Rao (PW-2) and Ganpat Rao were c witnesses on the original will (Exhibit P-1). Ganpat Rao has expired. Besides himself, the appellant/plaintiff examined said Prabhakar Rao (PW-2) and got the will proved. Prabhakar Rao (PW-2) fully supported the case of the appellant in respect of the will. It is noteworthy that both, appellant and said Prabhakar Rao, were extensively cross-examined. Not only this, but the D

other person Ramesh Kate, who was joined as the legal representative of Sukhiabai in the first Revision, was also got examined by the appellant, who claimed clearly that he had no interest in the property and in fact, the suit house was E bequeathed by Sukhiabai in favour of the appellant.

10. The respondent/defendant also examined himself and • according to him, the signatures on the will was not that of Sukhiabai. After considering the evidence fully and in details, the Trial Court, by its order dated 9.9.1997, gave a declaration F that present appellant Dashrath Rao was the legal representative of Sukhiabai in the case. The Trial Court also clarified that the order was only for the purpose of bringing legal representatives on record. Obviously it was under Order 22 Rule 5, CPC. It is noteworthy that this order is not further challenged G . _J by the tenant-respondent.

11 . It was thereafter that the appellant/plaintiff made amendments and claimed himself to be the owner of the house in question. He also pointed out that the respondent/defendant H

A was a tenant at a monthly rent of Rs.170/- of the whole house, but later on, the respondent/defendant had vacated one room t - of his tenancy and handed over it to Sukhiabai and retained 2 rooms and bathroom and the rent was fixed at Rs.130/- per month. He also pointed out that tenant had not paid any rent ; i

8 from 1.1.1994. He also reiterated his relationship with

Sukhiabai and the facts regarding the will, as also his bonafide personal need of the rented premises.

12. In his written statement, the tenant-respondent admitted c Sukhiabai to be his landlady and also accepted about the rent note dated 10.2.1980. He also again denied that the appellant/ plaintiff had become owner and also denied his need. On that basis, issues came to be framed, which are as under:-

(i) Whether there is relation of land lord and tenant D between plaintiff and the defendant?

(ii) Whether the defendant has not paid/cleared outstanding rent from 1.1. 1984 to the plaintiff?

E (iii) Whether the plaintiff is in genuine need of the suit accommodation for his own residential purpose?

(iv) Relief and Costs?

13. The evidence was again led by the appellant, wherein

\. )

F he asserted that the respondent/defendant was the tenant of

Sukhiabai and that he had become his tenant now as per the will, since he has become owner on the basis of the will. 'He also reiterated the will (Exhibit P-1 ), regarding which Court had given decision in the enquiry under Order 22 Rule 5 CPC. He

G then deposed about his need. We have seen the crossexamination of this witness by the respondent/defendant, which is lengthy cross-examination and very strangely, we find not a > .. single relevant question asked to him about the will. He was cross-examined mainly as regards his need. In para 18, a stray

H suggestion was given that Sukhiabai had not executed the will

in his favour and that he had manipulated to prepare fraudulent A "' will. The appellant reiterated that the will was not only executed, but the Court has accepted it. Beyond this, there is nothing in the cross-examination. The respondent/defendant also examined himself and in his evidence also, in para 4, he reiterated that the will shown was forged. He was specifically B asked in his cross-examination and he had to admit that he had filed no Revision against the order dated 9.9.1997, by which the Will was held proved, though he asserted that he was going ) to file the same. It was on this basis that the Trial Court held all the issues in favour of the appellant. c

14. Before the first Appellate Court, again it was reiterated by the tenant-respondent (appellant therein) that the Trial Court had committed an error in holding the appellant/plaintiff to be the heir of the suit house. Some judgments were cited in D support of this contention, they being Mahendra Dhapu & Ors. vs. Ram Avtar & Ors. [1923 AIR Nagpur 209], Kalyanmal Mills Ltd., Indore vs. Voli Mohammad & Ors. [1965 AIR M.P. 72], Raghunath Singh vs. Ganga Basai [1961 M.P.L.J. 398], Surajmal & Ors. vs. Kishori Lal, [1976 AIR H.P. 74]. The E Appellate Court distinguished all these decisions on the factual aspects and held that the Will (Exhibit P-1) was proved by the evidence of the appellant/plaintiff, as also the attesting witness.

~ It was also pointed out that the Will was not disputed by

~ anybody else, muchless even the interested persons. On the other hand, they had supported the Will. The Appellate Court F came to the conclusion that in that view, the tenant could not be allowed to raise question on the legality of the title of the appellant herein. The Appellate Court thereafter considered the matter on merits regarding the bonafide need of the appellant and held it to be proved. The Appellate Court further went on G

---~

to hold that since the tenant had challenged the title of the :, j landlord, i.e., the appellant during the pendency of the eviction petition, the landlord became entitled under Section 12(1)(c) to get the decree of eviction. It is on this basis that the appeal

came to be dismissed.

15. The High Court, however, took the view that the Will had to be proved all over again, though it was held proved

-~ ....,

earlier in the enquiry under Order 22 Rule 5, CPC. We have already earlier referred to the findings of the High Court. In our \ view, the view of the High Court that the Will had to be proved B again, is incorrect. \ .

16. As a legal position, it cannot be disputed thatnorrnally, an enquiry under Order 22 Rule 5, CPC is of a summary nature and findings therein cannot amount to res judicata, however,

I.: c that legal position is true only in respect of those parties, who set up a rival claim against the legatee. For example, here, there were two other persons, they being Ramesh and Arun Kate, who were joined in the Civil Revision as the legal

representatives of Sukhiabai. The finding on the Will in the order

D dated 9.9.1997 passed by the Trial Court could not become final as against them or for that matter, anybody else, claiming a rival title to the property, vis-a-vis, the appellant herein, and, therefore, to that extent, the observations of the High Court are correct. However, it could not be expected that when the question regarding the Will was gone into in a detailed enquiry, E where the evidence was recorded not only of the appellant, but

also of the attesting witness of the Will nd where these witnesses were thoroughly cross-examined and where the defendant also examined himself and tried to prove that the Will ( was a false document and it was held that he had utterly failed A

F in proving that the document was false, particularly because the document was fully proved by the appellant and his attesting witness, it would be futile to expect the witness to lead that evidence again in the main suit. It was at the instance of the High Court in the revisional jurisdiction that the direction was G given that the Trial Court should first decide as to whether who rcould be the legal representative of Sukhiabai and after ,.

complete enquiry, the Trial Court held the Will to be proved. The

.,, ..:

Will was not only attacked by the appellant on its proof, but also on merits, inasmuch as the respondent/defendant went on to

H contend before the Trial Court during that enquiry that the Will

was unnatural, unfair and was executed in doubtful A

~ circumstances. The respondent/defendant had also relied on the reported decision of this Court in Girja Dutt Singh vs.

Gangotri Datt Singh [AIR 1955 SC 346]. The Trial Court, however, rejected this contention. On the other hand, the Trial Court found on merits that the appellant was living with

B .

Sukhiabai and Sukhiabai had adopted him orally.

17. Evidence of Ramesh Kate was also referred to, who

.,1 asserted about this fact. Reference was also made to the evidence of Sukihabai herself in the Rent Control Case No. 14/ C 90-91 that she had adopted Dashrath Rao (appellant herein) and that Dashrath Rao lived with her. Clear cut findings were given by the High Court in these proceedings that from the evidence of Prabhakar Rao (PW-2), the attesting witness, it was clear that Sukhiabai had signed in his presence and he 0 had also signed in presence of Sukhiabai and had also seen the other attesting witness signing the Will and attesting the -· 't same. Not only this, but the Trial Court also wrote a finding that

the objection raised by the defendant (respondent herein) that Sukhiabai was not in a position to understand the Will on account of her poor physical condition, was also rejected by E the Trial Court. It was also noted that the Will was executed six years prior to her death and as such, there was no question of Sukhiabai being suffered with any mental or physical disability

* for executing the Will. Therefore, it is on this basis that the Will was held to be proved. Once this was the position and in the same suit, the further evidence was led, there was no point on the part of the appellant/plaintiff to repeat all this evidence all over again. We have closely seen the relied upon ruling of the Himachal Pradesh High Court in Suraj Mani & Anr. vs. Kishori

Lal (cited supra). The ruling undoubtedly correctly holds that the G finding in an enquiry under Order 22 Rule 5 cannot operate as "' res judicata, provided the very question needs to be decided.

The factual situation, however, differs substantially. The case before the Himachal Pradesh High Court only pertained to the correctness of the order passed in the enquiry under Order 22 H

A Rule 5, CPC. That was not a case where the question, as in the present case, fell for consideration. In fact, the Himachal

Pradesh High Court also observed and, in our view, correctly, that it was still open to the petitioner (therein) during the trial of the suit to establish that the Will was competent and confered B no right, title or interest on the respondent and, therefore, the respondent was not entitled to any relief in the suit.

Unfortunately, on evidence in this case, the respondent/ defendant did not do anything and did not even challenge the evidence of the appellant that he had become owner of the Will. c Merely because the evidence of respondent/defendant and Prabhakar Rao (PW-2) was not repeated all over again, it cannot be held that the appellant/plaintiff could be non-suited on this ground. ·

18. Dr. Kailash Chand, Learned Counsel, appearing for D the respondent also relied on ruling in Vijayalakshmi Jayaram vs. M.R. Parasuram [AIR 1995 A.P. 351). It is correctly held by the Andhra Pradesh High Court that the Order 22 Rule 5 is only for the purpose of bringing legal representatives on record for conducting of proceedings in which they are to be brought E on record and it does not operate as res judicata. However, the High Court further correctly reiterated the legal position that the inter se dispute between the rival legal representatives has to be independently tried and decided in separate proceedings. Here, there was no question of any rivalry F between the legal representatives or anybody claiming any rival

title against the appellant/plaintiff. Therefore, there was no question of the appellant/plaintiff proving the Will all over again in the same suit. The other judgment relied upon is Full Bench Judgment of Punjab & Haryana High Court in Mohinder Kaur G & Anr. vs. Piara Singh & Ors. [AIR 1931 Punjab & Haryana

130]. The same view was reiterated. As we have already pointed out, there is no question of finding fault with the view expressed. However, in the peculiar fcts and circumstances of this case, there will be no question of non-suiting the H appellant/plaintiff, particularly because in the same suit, there

y •

would be no question of repeating the evidence, particularly A .

~· when he had asserted that he had become owner on the basis of the Will (Exhibit P-1). In a case in Shaligram Bhagoo Kunbi & Anr. vs. Mt. Dhurpati Wlo Shamrao Kunbi [AIR 1939 Nagpur 147], the Division Bench of that Court consisting Hon'ble Stone C.J. and Hon'ble Vivian Bose, J., considered the question. The B Division Bench, firstly, quoted from Tarachand vs. Mt. Janki [AIR 1916 Nag. 89]. The quotation relied on was as follows:-

.J "It is no longer open to the Court to stay the suit until the dispute as to who is the legal representative of a deceased c plaintiff has been determined in a separate suit. The question as to who was the representative of a deceased defendant could not be left open for decision in another suit, even under the old Code, but had to be decided by the Court itself. Under the present Code, all such questions D have to be decided by the Court."

't The Bench then proceeded to refer to Bombay High Court decision in Raoji Bhikaji vs. Anant Laxman [1918 (5) AIR Born 175] and Allahabad High Court decisions in Raj Bahadur vs.

Narayan Prasad [1926 (13) AIR All. 439] and Antu Rai vs.

E Ram Kinkar Rai [1936 (23) AIR All. 412] and went on to record that order under Order 22 Rule 5 was not a res judicata. After referring to these rulings, the Bench held:- ..

"But there is an important qualification to this. It is true the F order is not res judicata, but for all that, the decision is final so far as the suit in which it is made is concerned, not on the ground of res judicata but because of Section 47. No subsequent decision in a separate suit can be used to affect the rights of the parties so far as questions relating G to the 'execution, discharge or satisfaction' of the decree ... y in connection with which the order was made is concerned."

The Bench further observed:-

"Once a person is joined as a legal representative under H

Order 22 Rule 5, and once it is accepted that that is final so far as that litigation is concerned, then it follows to the decree, and, thereafter, all matters relating to the 'execution, discharge or satisfaction' of that decree must be decided under Section 47 and not in a separate suit."

(Emphasis supplied)

Ultimately, the Bench came to the conclusion:-

"All that, in our opinion, is not res judicata is the question c whether or not the person joined as the legal

representative really occupies that character. That question is not finally concluded by a decision under Order 22 Rule 5 except in so far as it concerns the suit in which the decision is made. To that extent .. we overrule the judgment

0 in Mt. Laxmi vs. Ganpat reported in 17 NLR 45. The appeal is dismissed with costs." ·

(Emphasis supplied)

Therefore, it is clear that at least insofar as the suit in the E present case is concerned, the question regarding the

appellant's right to represent was closed. There could be a second suit, questioning his entitlement on the basis of Will, but admittedly, there is no such challenge by anyody to his status. as a legatee of Sukhiabai. Insofar as the suit in the present F case is concerned, the question was finally decided under

Order 22 Rule 5, CPC and in the same suit, it could not be reagitated. Obviously, the impugned judgment is incorrect when it holds that the appellant/plaintiff had to lead fresh evidence all over again to prove his status on the basis of the Will, which G was held to be proved in the enquiry under Order 22 Rule 5,

CPC.

19. All this is apart from the fact that the tenant in this case could not have challenged the Will at all. He was an utter outsider and had no interest in the property as owner. Indeed,

from the pleadings and evidence, it is clear that tenant- A respondent has not even ventured to claim any rival interest against the appellant/plaintiff.

20. For all these reasons, we are unable to agree with the impugned judgment and we would choose to set asie-ihe B same and restore the two judgments of the Trial Court and . Appellate Court. The appellant/plaintiff, therefore, succeeds with costs of Rs.25,000/-.

B.B.B.

Appeal allowed.