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2015 Supreme(J&K) 175
JAMMU & KASHMIR HIGH COURT
Janak Raj Kotwal , J.
Jagdish Chander and others - Appellant
Versus
Rahul Sharma and another - Resopndent
C. Rev. No. 63 of 2013 CMA No. D-63 of 2013
Decided On : 18-05-2015
For petitioner (s):Mr. Kulbhushan Salgotra, Advocate.
For respondent(s):Mr. Ved Raj Wazir, Sr. Advocate with Mr. Abhishek Wazir, Advocate
The main legal point established in the judgment is that a person claiming impleadment as a legal representative must demonstrate sufficient interest in the subject matter of the suit, and not every person claiming impleadment need be a legal heir.
Headnote:
Legal Representatives - Impleadment of Legal Representatives in a Suit - Order 22 Rule 3 CPC, Section 2(11) CPC - Section 115 CPC - The court discussed the definition of 'legal representative' under Section 2(11) CPC and the provisions of Order 22 Rule 3 CPC. It highlighted the distinction between a legal heir and an intermeddler, emphasizing that not every person claiming impleadment need be a legal heir. The court referred to relevant case laws to establish that a person claiming impleadment as an intermeddler must show sufficient interest in the subject matter of the suit. The court concluded that the respondents could not be treated as intermeddlers and therefore, the trial court erred in impleading them as legal representatives of the deceased-plaintiff.
Fact of the Case:
The plaintiff filed a suit against the defendants for possession of land and a mandatory injunction. After the plaintiff's death, the respondents applied for substitution as legal representatives, claiming to have been in possession of and handling the deceased's property. The trial court allowed the application, but the defendants opposed, contending that the respondents had no locus standi.
Finding of the Court:
The court found that the trial court erred in impleading the respondents as legal representatives of the deceased-plaintiff, as they could not establish sufficient interest in the subject matter of the suit.
Issues: The main issue was whether the respondents should have been impleaded as legal representatives of the deceased-plaintiff in accordance with Order 22 Rule 3 CPC and Section 2(11) CPC.
Ratio Decidendi: The court emphasized the distinction between a legal heir and an intermeddler, highlighting that not every person claiming impleadment need be a legal heir. It established that a person claiming impleadment as an intermeddler must show sufficient interest in the subject matter of the suit.
Final Decision: The revision was allowed, and the impugned order was set aside, concluding that the trial court erred in impleading the respondents as legal representatives of the deceased-plaintiff.
1. This is a revision petition under section 115 CPC filed by the defendants against order dated 31.08.2013, whereby in a suit filed against them by one Som Dutt Sharma the trial Court after the death of the plaintiff has allowed substitution of the respondents as legal representatives of the deceased.
Facts briefly are these:
Plaintiff filed a suit against petitioners(defendants) for possession of land measuring 2 kanals and 04 marlas comprised in Khasra No. 2713 situate at village, Kote, Tehsil and District Jammu and mandatory injunction directing the petitioners to dismantle the construction of two rooms and one shop raised constructed by the defendants on the suit land. He alleged that defendants have trespassed upon and taken illegal possession of his land and cause of action accrued to him when defendants declined to restore the possession to him and asserted their own right in the suit land. Plaintiff died during the pendency of the suit on 23.03.2010. The respondents moved an application for their substitution as legal representatives of the deceased-plaintiff. They contended that the deceased had snapped his relationship with his wife, son and daughters by virtue of a deed of disinheritance dated 22.03.2010 ousting them from his life and estate and that the respondents had been and even now are in possession of and handling the landed property of the deceased and used to attend litigation in the suit on behalf of the deceased-plaintiff and, therefore, they are intermeddlers vis-a-vis the estate of the deceased and entitled to represent him as his legal representatives in the suit.
3. Learned trial Court allowed the application vide impugned order dated 31.08.2013 bringing on record the respondents as legal representatives of the deceased-plaintiff. As per the impugned order and record of the trial Court, the petitioners (defendants) opposed the respondents' application contending that the legal heirs of the deceased-plaintiff having not come forward for impleadment the respondents have no locus standi. Petitioners also denied respondents' plea that the deceased has disinherited his legal heirs and alleged that the respondents with ulterior motive want to grab the property of the deceased and to dislodge his legal heirs. Learned trial Court, however, while referring to definition of the term 'legal heir' as given in section 2(11) CPC took the view that the respondents, applicants therein, are the legal representatives of the deceased-plaintiff, however, observing further that finding in the application shall have no effect on right of the legal heirs of the deceased.
4. Heard learned counsel for the parties and I have perused the record.
5. Mr. Kalbhushan Salgotra, learned counsel for the petitioners (defendants), submitted briefly that the learned trial Court has fallen into error by impleading strangers as legal representatives of the deceased-plaintiff. Mr. Ved Raj Wazir, learned Senior Advocate, appearing for the respondents, however, supported the impugned order contending that not only a legal heir but a person who manages the property of deceased is entitled to be substituted in a suit in his capacity as intermeddlers qua the property of the deceased. Mr. Wazir submitted further that respondents have been substituted in their capacity as intermeddlers as they had been taking care of the deceased/plaintiff and had been and are managing his entire estate. Mr. Wazir relied upon a judgment of a co-ordinate Bench of this Court in Baldev Raj v. J&K Special Tribunal' 2010(4) JKJ 732. Mr. Wazir also questioned maintainability of this revision petition contending that the impugned order does not amount to a case decided and is not open to the revisional jurisdiction of this Court. In support of his submission, Mr. Wazir relied upon a judgment of a co-ordinate Bench of this Court in Ghulam Mohammad Bhat v. Abdul Rahim Sheik', 2012 (2) SLJ 487.
6. In relation to objections to the maintainability of the revision petiti
