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1981 Supreme(HP) 34
High Court Of Himachal Pradesh
T.R.HANDA
NISAPATI - Appellant
Versus
GYATRI - Respondent
Civil Revision No. 11 of 1979
Decided On : 07/10/1981
For the Appellant:Shri Kedar Ishwar, Advocate
The necessity of impleading the legal representatives of a deceased party arises only when the provisions of Order XXII, Rule 3 or Order XXII, Rule 4 of the CPC are attracted, and not when the appeal can continue against the surviving respondents alone.
Headnote:
CIVIL PROCEDURE CODE, 1908 - ORDER XXII, RULES 2, 3, 4 AND 5 - INTERPRETATION - DEATH OF A PARTY - CONTINUATION OF SUIT/APPEAL - IMPLEADING LEGAL REPRESENTATIVES - NECESSITY - CONDITIONS - DETERMINATION OF LEGAL REPRESENTATIVE - SCOPE.
Fact of the Case:
The petitioner, claiming to be the sole legal representative of the deceased respondent, Smt. Achhri, filed an application under Order XXII, Rule 4 of the Code of Civil Procedure (CPC) seeking to be impleaded as her legal representative in an appeal pending before the court. The respondents, the surviving respondents in the appeal, opposed the application, arguing that no legal representative was required to be impleaded as the appeal could continue against them alone.
Finding of the Court:
The court held that the necessity of impleading the legal representatives of a deceased party arises only when the provisions of Order XXII, Rule 3 or Order XXII, Rule 4 of the CPC are attracted, which is when the sole plaintiff or sole defendant dies and the right to sue survives, or when one of the two or more plaintiffs or defendants dies and the right to sue does not survive to the surviving plaintiff/plaintiffs alone or against the surviving defendant/defendants alone. In the present case, the court found that the appeal could continue against the surviving respondents alone and that there was no necessity to implead any third party as the legal representative of the deceased respondent.
Issues: 1. Whether an application for impleading legal representatives is necessary when the appeal can continue against the surviving respondents alone? 2. Whether the petitioner, claiming to be the sole legal representative of the deceased respondent, can be impleaded as her legal representative in the appeal?
Ratio Decidendi: The court interpreted Order XXII, Rules 2, 3, 4, and 5 of the CPC and held that: 1. Order XXII, Rule 2 of the CPC provides that where there are more than one plaintiff or defendant and any one of them dies, the suit/appeal shall continue without the necessity of taking any additional step if the right to sue survives in favor of the surviving plaintiff/plaintiffs alone or against the surviving defendant/defendants alone. 2. Order XXII, Rule 5 of the CPC, which deals with the determination of legal representatives, is attracted only when the case involves the appointment of a legal representative or legal representatives on the death of a plaintiff or a defendant. 3. In the present case, the appeal could continue against the surviving respondents alone, and there was no necessity to implead any third party as the legal representative of the deceased respondent.
Final Decision: The court dismissed the revision petition filed by the petitioner, holding that the order of the lower court striking off the name of the deceased respondent from the array of respondents was the only proper order in the circumstances of the case.
T. R. Handa, J.—The petitioner has come up in revision against the order dated 21-12-1978 recorded by the Additional District Judge Mandi on an application purporting to have been made under Order XX11, Rule 4 read with Section 151 of the Code of Civil Procedure on behalf of the respondents.
2. The facts which have giver rise to this revision petition are not very much in dispute. The present petitioner Nisapatti brought a suit in the Court of Subordinate Judge, Mandi against his brother Lekh Raj and his mother Smt. Achhri for a declaration that certain property as detailed in the suit was ancestral in nature in which all the three parties named above bad equal share and that the same was liable for partition in accordance with such shares. Shri Lekh Raj the brother of the petitioner contested the suit claiming that he was the exclusive owner of the property in question as it was his self acquired property. Smt. Achhri the mother of the petitioner did not contest. Shri lekh Rai expired during the pendency of the suit and the present respondents were impleaded as his legal representatives. The suit was ultimately decreed in favour of the petitioner plaintiff.
3. The respondents then preferred an appeal against the judgment and decree of the trial Court which was assigned for disposal of the Additional District Judge Mandi. Curing the pendency of that appeal Smt. Achhri the mother of the petitioner and who had been impleaded as respondent No. 2 in the appeal expired. After the death of Smt. Achhri, the respondents who were the appellants before the Additional District Judge made an application purporting to be under Order XXII, Rule 4 read with Section 151, C. P. C. praying that the name of Smt. Achhri respondent be struck off from the appeal in order to proceed further with the case. It was alleged by the respondents in their application that Smt. Achhri respondent had left no other heir except the parties to the litigation and as such her name needed to be struck off.
4. In reply to that application the present petitioner while admitting the factum of death of Smt. Achhri contended that vide her will dated 9-5-1978, the deceased had bequeathed all her properties in his favour who alone was, therefore, competent to represent the estate of the deceased. The petitioner accordingly prated that after determining the question in accordance with the provisions of Order XXII, Rule 5, C. P. C. as to who was the legal heir of Smt. Achhri, the application be rejected to the extent that the present respondents were not the legal heirs of the deceased.
5. The learned Additional District Judge vide his impugned order accepted the application of the respondents by ordering that the name of Smt. Achhri deceased be removed from the array of the respondents in appeal. While disposing of the said application the learned Additional District Judge further observed that the question as to whether the present petitioner Nissapatti had become exclusive heir and legal representative of Smt. Achhri by virtue of the will in his favour, was left open and in case the appeal was dismissed, this, petitioner would have a right to claim the share of Smt. Achhri in the suit property on the basis of the will in his favour by instituting a separate suit.
6. The respondents did not appear inspite of service and hence this revision petition was[ heard ex parte. Shri Kedar Ishwar, the learned counsel for the petitioner, argued that once rival contentions had been put forward before the learned Additional District Judge by the parties with respect to their claims of being treated as legal representative of Smc. Achhri deceased, it was imperative upon the learned Additional District Judge to have decided such contentions one way or the other in terms of the requirements of Order XXII, Rule 5, the provisions of which were mandatory. By not deciding and leaving this question open the learned Additional District Judge has refused to exercise jurisdiction vested in h
