The central legal point established in the judgment is that the determination of legal representatives under Order 22 Rule 5 of the Code of Civil Procedure should be based on evidence presented during the trial, and the issue of legal representation should be decided as a preliminary issue before proceeding to decide the suit on merits.

This Civil Revision Petition is filed against the fair and decreetal order dated 12.08.2009, made in I.A.No.173 of 2008 in O.S.No.130 of 2007, on the file of the First Additional Subordinate Court, Erode.

2. The petitioners are defendants 4 to 6, first respondent is the plaintiff, respondents 2 & 3 are the defendants 2 & 3 and respondents 4 to 7 are the proposed parties in O.S.No.130 of 2007. The first respondent filed the said suit for partition and separate possession, on the file of the First Additional Subordinate Court, Erode. Pending suit, the first defendant died. First respondent filed I.A.No.173 of 2008 for impleading the proposed parties as legal representatives of the deceased first defendant.

3. The petitioners filed counter affidavit and submitted that the proposed parties have no connection with the deceased first defendant. The first defendant had two wives and they are alive and they are the only legal heirs of deceased first defendant. The third respondent and proposed parties remained exparte. The second respondent did not file any counter affidavit.

4. Before the learned First Additional Subordinate Judge, no oral and documentary evidence was let in. The learned Judge, allowed the application on the ground that whether the respondents 4 to 6 are the legal representatives of the deceased first defendant or not can be decided, only after appreciating the evidence let in by the parties during the trial.

5. Against the said order dated 12.08.2009, made in I.A.No.173 of 2008 in O.S.No.130 of 2007, the present civil revision petition is filed by the petitioners.

6. The learned counsel appearing for the petitioners submitted that the learned Judge, committed an irregularity in not deciding the issue whether the respondents 4 to 6 are the legal heirs of the deceased first defendant. As per Order 22 Rule 5 of the Code of Civil Procedure, it is the duty of the Court to determine whether proposed parties are the legal heirs of the deceased first defendant or not. The learned counsel appearing for the petitioner relied on the judgments reported in :

(i) (2006) 5 CTC 606 (Chhabil Das v. Pappu):

"8. The question of substitution of Jarwali by Pappu, therefore, was in issue in a proceeding under Order 22, Rule 5 of the Code of Civil Proceduce, 1908. Order 22, Rule 5, reads thus:

"5. Determination of question as to legal representatives- When a question arises as to whether any person is or is not the legal representative of a deceased plaintiff or a deceased defendant, such question shall be determined by the Court:

Provided that where such question arises before an Appellate Court, that Court may, before determining the question, direct any Subordinate Court to try the question and to return the records together with evidence, if any recorded at such trial, its findings and reasons therefore, and the Appellate Court may take the same into consideration in determining the question."

9. The appellant, therefore, did not deny or dispute that the respondent herein could represent the estate of Jarwali. When a question arose as to who is the legal representative of a party to the Suit who had expired, the same was required to be determined in terms of Order 22, Rule 5 of the Code of Civil Procedure.

(ii) 2015 (1) CTC 114 (Karedla Parthasaradhi V. Gangula Ramanamma (D) through L.Rs. & Others):

“28. In the first place, the High Court should have remanded the case to the Trial Court by taking recourse to the provision of Order 22, Rule 5, Proviso for deciding the question as to whether K.Sanjiva Rao (Respondent No.1 herein) was the Legal Representative of deceased Defendant No.1 (Gangula Ramanamma) and if so, in what capacity adopted son or legatee on the strength of Will dated 02.01.1984. Secondly, without first deciding this material question, the High Court could not have either allowed the Application and nor it could have proceeded to decide the Appeal on merits. Thirdly, the High Court simply allowed the Application without rec