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2011 Supreme(Guj) 526
2012 (1) GCD 117 (Guj)
Hon’ble Mr. Justice J.B. Pardiwala
Shrimant Sangramsinh Pratapsinhrao Gaekwad & Anr.
Versus
Mrunalinidevi Puar & Ors.
Civil Application - for Bringing Heirs No. 4133 of 20101—Decided
on 23/09/20112
Mr. Amar N. Bhatt, for the Petitioners No. 1 - 2.
Mr. Ashish H. Shah, for the Respondent No. 1.
Mr. Mehul S. Shah with Mr. Parthiv B. Shah, for the Respondents No. 2 - 3.
Rule Served by DS, for the Respondents No. 5.2.1, 5.2.2, 5.2.3, 5.2.4 - 7.
Mr. S.N. Thakkar, for the Respondents No. 5.2.3 .
Point in Issue :
Whether applicant can substitute legal representatives of respondent in special civil application without substituting the legal representative and heirs in main regular suit.
Headnote:Head Note :
Civil Procedure Code, 1908 (Central Act 5 of 1908) — Sections 115, 141, Order 22 Rule 4 and Order 43 Rule 1 — Constitution of India, 1950 — Articles 226 and 227 — Special Civil Application under — Petition therein to substitute legal representative of deceased Respondent No. 5 — Contention that petition is not maintainable as the petitioners have not substituted the heirs and legal representatives of Respondent No .5 in main regular civil suit pending in the lower Court — Court overruled the objection and held that petition has been filed by applicants within a period of 90 days from the death of the Respondent No. 5 and therefore, deservers to be allowed.
Held :
The objection of the respondents that as the applicants have not substituted the heirs and legal representatives in the main suit the present Applications preferred in proceedings under Article 226/227 of the Constitution of India would not be maintainable, deserves to be overruled. It is undisputed that within a period of 90 days from the date of death of Respondent No. 5 the application was filed by the applicants. These Applications deserve to be allowed on both the counts. Even if I believe and hold that provisions of Order 22 CPC are applicable to the present proceedings and even without making the provisions of Order 22 CPC applicable, the Applications are maintainable and the heirs and legal representatives of deceased Respondent No. 5 can be permitted to be substituted in the Civil Application for interim relief as well as the main petition. [Para 23]
J.B. Pardiwala, J.—As common questions of facts and law are involved in the above captioned two Civil Applications for substitution of heirs and legal representatives, both the Applications were taken up for hearing together and are being disposed of by this common judgment and order.
2. Facts relevant for the purpose of deciding the Civil Applications for substitution of heirs and legal representatives can be summarised as under :—
CIVIL APPLICATION No. 4133 of 2010
In CIVIL APPLICATION No. 3423 of 2009
In SPECIAL CIVIL APPLICATION No. 4632 of 2006
Civil Application No. 4133 has been preferred by the original petitioners in Civil Application No. 3423 of 2009 in Special Civil Application No. 4632 of 2006. Civil Application No. 3423 of 2009 is for interim relief like appointment of Receiver in respect of the suit properties and also for necessary directions upon the respondents to maintain status quo in respect of the suit properties. Special Civil Application No. 4632 of 2006 has been preferred by the applicants, challenging the order of the Additional District Judge and Presiding Officer, Fast Track Court No. 5, Vadodara dated 15th February 2006 passed in Civil Misc. Appeal No. 133 of 2003, whereby the appellate Court set-aside the order passed by the Civil Judge, Vadodara below Exh.5 in Regular Civil Suit No. 640 of 2003 dated 30th August 2003.
It appears that during the pendency of Special Civil Application No. 4632 of 2006, Respondent No. 5 Smt. Lalitadevi Kirdutt passed away on 1st March 2010. Accordingly, the applicants herein, the original petitioners preferred Civil Application No. 4133 of 2010 i.e. the present Application on 21st April 2010 for substitution of heirs and legal representatives of late Smt.Lalitadevi Kirdutt, original Respondent No. 5. Proposed Respondent Nos. 5/1 to 5/4 have been shown as heirs and legal representatives of late Smt.Lalitadevi Kirdutt.
The application for substitution of heirs and legal representatives could have been allowed straightway but there has been a strong objection at the end of Respondent Nos. 2 and 3 and the proposed heirs and legal representatives of late Smt. Lalitadevi Kirdutt i.e. 5/1 to 5/4. The objection raised is of a very peculiar nature. According to the learned counsels appearing for Respondent Nos. 2 and 3 and the proposed heirs and legal representatives i.e. 5/1 to 5/4, the present Applications are not maintainable as the petitioners have not substituted the heirs and legal representatives of late Smt. Lalitadevi, original Respondent No. 5 in the main Regular Civil Suit No. 640 of 2003 pending in the Court of Civil Judge (S.D.), Vadodara. As per the contention of the learned counsels for Respondent Nos. 2 and 3 and the proposed heirs and legal representatives i.e. 5/1 to 5/4, without first bringing the heirs on record of the original suit under the provisions of Order 22, Rule 4 CPC, the present Applications directly in proceedings under Article 226 and/or 227 would not be maintainable.
CIVIL APPLICATION No. 4134 of 2010
in SPECIAL CIVIL APPLICATION No. 4632 OF 2006
Civil Application No. 4134 has been preferred for bringing heirs and legal representatives in the main petition i.e. Special Civil Application No. 4632 of 2006.
3. I have heard learned Counsel Mr. Amar N. Bhatt appearing for the applicants, learned Counsel Mr. Mehul S. Shah appearing with learned advocate Mr. Parthiv Shah for Respondent Nos. 2 and 3 and learned Counsel Mr. S.N. Thakkar appearing for the proposed heirs and legal representatives i.e. 5/1 to 5/4.
In this matter, the following question of law falls for my consideration :—
During the pendency of proceedings under Article 226 and/or 227 of the Constitution of India arising from an interlocutory order passed by a civil Court in a suit proceedings if any one of the respondents dies then, whether an application for substitution of heirs and legal representatives of the deceased respondent can be preferred directly without first substituting the hei
