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2009(7) Supreme 211
SUPREME COURT OF INDIA
Markandey Katju and V. S. Sirpurkar, JJ.
Dashrath Rao Kate — Appellant
versus
Brij Mohan Srivastava — Respondent
Civil Appeal No. 1621 of 2004
Markandey Katju and V. S. Sirpurkar, JJ.
Decided on : 03-10-2009
AIR 1955 SC 346 – Referred
AIR 1976 HP 74; AIR 1965 MP 72; AIR 1961 MPLJ 398; 1923 AIR Nagpur 209 – Cited with approval
AIR 1995 A.P. 351; AIR 1931 P&H 130; AIR 1939 Nagpur 147; AIR 1916 Nag. 89; 1918 (5) AIR Bom 175; 1926 (13) AIR All. 439; 1936 (23) AIR All. 412 – Distinguished
(b) M.P. Accommodation Control Act – Section 12 (1) (c) – Tenant can not challenge a Will at all – He is an utter outsider and can have no interest in the property as owner. (Para 19)
Facts of the case:
Interpretation of Section 12 (1) (c) of the M.P. Accommodation Control Act and Order XXI, rule 5, CPC is involved in this case.
Finding of the Court :
Impugned judgment cannot be sustained.
Certainly. Based on the provided legal document, here are the key points:
An order issued under Order XXII, Rule 5 of the Civil Procedure Code does not operate as res judicata, meaning it does not bar re-litigation of the same issue in subsequent proceedings, especially when parties set up rival claims (!) (!) .
The legal position is that findings from a summary enquiry under Order XXII, Rule 5 are not final in terms of res judicata but are considered final regarding the specific suit in which they were made, particularly concerning the question of whether a person was properly joined as a legal representative (!) (!) .
Once a person is joined as a legal representative under Order XXII, Rule 5, the question of their entitlement or status is generally considered settled for that particular suit, and subsequent decisions cannot alter that status unless challenged separately (!) (!) .
The finality of such an order is limited to the specific suit, and it does not preclude the possibility of initiating a subsequent suit to challenge the entitlement or rights of the legal representative on different grounds, such as the validity of a will (!) .
In the context of property and tenancy disputes, a tenant, being an outsider and having no ownership interest, cannot challenge the validity of a will or the title of the person claiming ownership based on a will, especially when the will has been duly proved and accepted in earlier proceedings (!) .
The evidence and findings in the initial enquiry under Order XXII, Rule 5, are sufficient to establish the legal representative's status and ownership, and there is no requirement to re-prove the will in subsequent proceedings related to the same matter (!) .
The court emphasized that the question of a person's entitlement as a legal representative, once decided in a suit, is final for that suit and cannot be re-agitated, although it remains open to challenge in a new suit if necessary (!) .
The court highlighted that the respondent (tenant) had no interest in challenging the will, as they were an outsider, and their challenge to the title or ownership was not permissible under the law (!) .
The judgment in the case was to set aside the impugned decision and restore the judgments of the lower courts, affirming the validity of the will and the appellant's status as the legal representative, with an award of costs (!) .
Please let me know if you need further analysis or specific legal advice based on these points.
JUDGMENT
V.S. Sirpurkar, J.—
1. The judgment of the High Court, allowing the Second Appeal is in challenge by way of this 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 XXII 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 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?”
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 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?”
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 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) 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 Sukhiabai and was living with her. The house in dispute was let out to the respondent herein as a monthly tenant and a written rent 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 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 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 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 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
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