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2009(8) Supreme 305
SUPREME COURT OF INDIA
Tarun Chatterjje and Dr. B.S. Chauhan, JJ.
Suresh Kumar Bansal — Appellant
versus
Krishna Bansal & Anr. — Respondents
Civil Appeal No. 8271 of 2009
(Arising out of SLP)No.7687 of 2006)
Decided on : 14-12-2009
Facts of the Case :
Suit for eviction and recovery of arrears of rent was filed by plaintiff against tenant in respect of a shop room herein in the instant case. Plaintiff expired during pendency of suit. Applications for substitution as an heir and legal representative of the deceased in the pending suit were filed by respondent No.1 widow of deceased and appellant brother of the deceased plaintiff. Civil Judge allowed application filed by respondent No.1 and rejected the application filed by the appellant on the ground that the Will of deceased plaintiff did not seem to have been executed by him and, therefore, the appellant was not entitled to be substituted/impleaded in the suit for eviction as he was not the legal representative of the deceased plaintiff. Writ Application thereagainst filed by appellant was Dismissed.
2. Present appeal has been filed against said order of High Court.
Findings of the Court :
In an eviction proceeding, when a legatee under a Will intends to represent the interest of estate of the deceased testator, he will be a legal representative within the meaning of Section 2(11) of Code of Civil Procedure, for which it is not necessary in an eviction suit to decide whether the Will on the basis of which substitution is sought for, is a suspicious one or that the parties must send the case back to the probate Court for a decision whether the Will was genuine or not.
It is now well settled that determination of the question as to who is the legal representatives of the deceased plaintiff or defendant under Order XXII Rule 5 of the Code of Civil Procedure is only for the purposes of bringing legal representatives on record for the conducting of those legal proceedings only and does not operate as resjudicata and the inter se dispute between the rival legal representatives has to be independently tried and decided in probate proceedings. If this is allowed to be carried on for a decision of an eviction suit or other allied suits, the suits would be delayed, by which only the tenants will be benefited. In order to shorten the litigation and to consider the rival claims of the parties, the proper course to follow is to bring all the heirs and legal representatives of deceased plaintiff on record including the legal representatives who are claiming on the basis of Will of the deceased plaintiff so that all the legal representatives namely, the appellant and the natural heirs and legal representatives of the deceased plaintiff can represent the estate of the deceased for ultimate benefit of the real legal representatives. If this process is followed, this would also avoid delay in disposal of the suit. High Court as well as the trial Court were not at all justified in rejecting the application for impleadment filed at the instance of the appellant based on alleged Will of the deceased plaintiff at this stage of proceedings. Impugned order of High Court was set aside . Application for impleadment filed by appellant was allowed. Appeal allowed.
JUDGMENT
Tarun Chatterjee, J. —
1. Leave granted.
2. This appeal by special leave arises from the judgment and order dated 18th of January, 2006 of the High Court of Madhya Pradesh at Gwalior in Writ Petition No.261 of 2006 dismissing the writ petition and affirming the order dated 17th of November, 2005 passed by the 8th Civil Judge, Class I, Gwalior in Civil Suit No. 40-A/2004.
3. One Shri Mohanlal Bansal (since deceased) as a plaintiff had instituted a suit for eviction and recovery of arrears of rent against one Shri Bhogiram (since deceased) in respect of a shop room situated at Kampoo, Lashkar, Gwalior, M.P. (in short the ‘suit premises’). During the pendency of the suit, the plaintiff had expired on 20th of June, 1989 and thereafter his widow, the respondent No.1 herein, filed an application for substitution as an heir and legal representative of the deceased in the pending suit. The appellant herein, the brother of the deceased plaintiff also filed an application for substitution/impleadment as heir and legal representative of the deceased plaintiff claiming the suit premises on the allegation that the deceased plaintiff had executed a Will in his favour on 11th of June, 1989. The learned Civil Judge by an order dated 22nd of February, 1991 had allowed the application for substitution/impleadment filed by the widow of the deceased plaintiff, namely, the respondent No.1 and rejected the application for substitution/impleadment filed by the appellant on the ground that the Will of the deceased plaintiff did not seem to have been executed by him and, therefore, the appellant was not entitled to be substituted/impleaded in the suit for eviction as he was not the legal representative of the deceased plaintiff.
4. Feeling aggrieved by the aforesaid order of the learned Civil Judge, a revisional application was filed in the Court of the IVth Additional Judge to the Court of District Judge, Gwalior (in short, “the Additional Judge”) and the Additional Judge, by his order dated 11th of November, 1991, set aside the order of the learned Civil Judge to the extent it held that the appellant was not the legal representative of the deceased plaintiff and thereafter remanded the case back to the Civil Judge for fresh decision of the application for substitution/impleadment filed at the instance of the appellant. Again, the Civil Judge by his order dated 17th of November, 2005 decided the application for substitution/impleadment filed by the appellant and rejected the same observing that the execution of the Will by the testator i.e. the original plaintiff on the basis of which substitution/impleadment was sought for, seemed suspicious. This time, the appellant herein, feeling aggrieved by the order of the learned Civil Judge, filed a writ application in the High Court of Madhya Pradesh at Gwalior which came to be registered as W.P.No.261 of 2006. By the impugned judgment of the High Court, the writ petition filed by the appellant for his substitution/impleadment in the suit for eviction was also rejected affirming the order of the learned Civil Judge rejecting the application for substitution/impleadment of the appellant holding inter alia that there was no ground to interfere with the order of the Civil Judge in the exercise of its power under Article 227 of the Constitution. The High Court held that the summary enquiry was conducted only to find out whether the appellant was entitled to participate in the proceeding as a legal representative of the deceased plaintiff and in the said limited enquiry, finding was arrived at by the learned Civil Judge that the execution of the Will seemed to be suspicious and such finding of the learned Civil Judge would only be treated as the decision on the question whether the appellant should be impleaded as a party in the eviction suit.
5. It is this order of the High Court that was challenged by the appellant in this Court by way of a special leave petition which on grant of leave was heard in t
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