The scope of substitution application under Order XXII, Rule 3 and Rule 5 of the Code of Civil Procedure is limited to prosecuting the suits/proceedings and does not determine the rights of the parties or legal representatives.

Re :— Civil Misc. Substitution Applications No. 287860 of 2008 and 322897 of 2009 are taken up for orders.

Both the applicants claim themselves to be legal heir and representative of sole petitioner late Shanti Devi. The applicant of Substitution Application No. 287860 of 2008 claim himself to be sole surviving heir of late Shanti Devi whereas the ap#31;plicant in Substitution Application No. 322897 of 2009 claim herself to be daugh#31;ter of late Shanti Devi. Both sides dispute status of each other and their relation to late Shanti Devi.

2. Sri M.A. Qadeer, learned Senior Counsel assisted by Sri Shamim Ahmad appears in Substitution Application No. 287860 of 2008 whereas Sri V.M. Zaidi, learned Senior Counsel assisted by Sri S.M.G. Asgar, appears in Substitution Application No. 322897 of 2009.

3. It is not in dispute that late Shanti Devi had filed writ petition and she has passed away. In both the appli#31;cations, the applications praying for condonation of delay in filing the substi#31;tution application have been allowed. Both the applications have been filed under Order XXII, Rule 3 of the Code of Civil Procedure.

Heard learned Counsel for the par#31;ties.

4. For deciding the rival claim for substitution, the language used under Rule 3 and Rule 5 of Order XXII, of Code of Civil Procedure are required to be examined, which are reproduced herein under:

Procedure in case of death of one of several plaintiffs or of sole plaintiff.—(1) Where one of two or more plaintiffs dies and the right to sue does not survive to the surviving plaintiff or plaintiffs alone, or a sole plaintiff or sole surviving plaintiff dies and the right to the sue survives, the Court, on an application made in that be#31;half, shall cause the legal representa#31;tive of the deceased plaintiff to be made a party and shall proceed with the suit.

5. Determination of question as to le#31;gal representative.—Where a question arises as to whether any person is or is not the legal representative of a deceased plaintiff or a deceased de#31;fendant, such question shall be de#31;termined by the Court:

[Provided that where such ques#31;tion arises before an Appellate Court, that Court may, before determining the question, direct any subordinate Court to try the question and to re#31;turn the records together with evi#31;dence, if any recorded at such trial, its findings and reasons therefor, and the Appellate Court may take the same into consideration in determin#31;ing the question.]

5. The words used "shall proceed with the suit" in Order XXII, Rule 3 is if read with Rule 5 then it will mean to carry on the proceeding uptill it reaches to its logical end. To my mind the scope of substitution application is limited one i.e., to prosecute the suits/proceedings and the order passed on the substitution application is not binding on the Court which will examine the genuineness of the documents claiming right over the property in dispute.

6. The view taken by me is sup#31;ported by numerous decisions of this Court as well as of other High Courts. In the case of Jagdish v. District Judge, Gorakhpur and others, 1999 (17) LCD 1451 this Court has ob#31;served that:

"The scope and ambit of Order XXII, is related to the carriage of the proceedings to the extent who is to carry on the proceedings. It does not determine the rights of the parties or even persons claiming as legal repre#31;sentatives. The definition of legal representative as defined in section 2 ; (ii) of the Code of Civil Procedure in#31;cludes a person who inter-meddles with the estate of the deceased. Thus, it is only a proceeding for ascertain#31;ing as to who is the legal representa#31;tive eligible to continue the lis. The scope of enquiry under Order XXII cannot surpass the purpose and ob#31;ject for which Order XXII is pre#31;scribed. It cannot be stretched to the extent of determining the lis between the parties on merits by deciding ti#31;tle. Thus, the provision of Rule 5 of Order XXII relat