Substitution of a legal representative in a civil suit is a procedural step for the continuation of litigation. The inquiry under Order 22 Rule 5 is summary, and an order of substitution does not finally adjudicate upon the validity of a testamentary instrument or succession rights.

O R D E R

The petitioners are aggrieved by the order dated 01.02.2017 passed by the 4th Civil Judge, Class 1, Gwalior, in R.C.S. No.49-A of 2014, whereby their application under Order 22 Rule 3 read with Section 151 of the Code of Civil Procedure has been rejected by the learned Trial Court.

2. For convenience, in this order, the petitioner no.2 is referred to as 'plaintiff', while petitioner no.1 is referred to as 'applicant', and the respondents are referred to as 'defendants' as per their respective status in the civil suit.

3. To decide the controversy, it is necessary to understand the rival claims of the plaintiff and defendants in the suit.

4. The plaintiff and one Prakash Choubey have filed a suit for declaration and permanent injunction in relation to the suit property, as mentioned in para 2 of the plaint, inter-alia stating that the land in dispute is of the ownership of their grandfather, who had purchased the same by registered sale deed dated 28.6.1944 from one Balmukund Chingamal Brahmin. It is pleaded that since the defendants are interfering in their possession over the suit land, claiming the same to be their own property, a decree for permanent injunction is also claimed.

5. The plaintiffs have also challenged the judgment and decree dated 24.4.2009 passed by the Second Civil Judge, Class-I, Gwalior, in Civil Suit No.47-A of 2007 as nullity against their interest. The plaintiffs thus claim the property to be their own property, being the successors of their grandfather.

6. On the other hand, the defendants have filed the written statement denying the plaint averments. In substance, they claim this property on the basis of the judgment and decree dated 24.4.2009 passed in Civil Suit No.47-A of 2007. It is thus seen that the rival claims of the parties to the suit are independent of the rights claimed by each of them. In other words, they do not claim the property through a common ancestor who was owner of the suit property.

7. The plaintiff no.1, Prakash Choubey, expired on 10.1.2016. Admittedly, he was unmarried and has not left any Class-I heir behind him. The applicant, Alok Raghuvanshi, filed an application under Order 22 Rule 3 read with Section 151 of the Code of Civil Procedure, seeking his substitution in place of deceased plaintiff no.1. The substitution was sought on the strength of a registered Will dated 24.12.2007, stated to have been executed by the deceased plaintiff in favour of the applicant. The prayer for substitution was opposed by the defendants, alleging the will to be a forged and fabricated one. The learned Trial Court, by the impugned order dated 1.2.2017, has rejected the said application.

8. The learned Trial Court was of the view that even after the death of plaintiff no.1, the right to sue survives in favour of the remaining plaintiff no.2, Suresh Choubey, and therefore, the substitution of the applicant in place of plaintiff no.1 is not required. The Court also held that the Will relied upon by the applicant has not been proved so far, and if the substitution on the basis of Will is accepted, the validity of the Will needs to be examined in the suit, which will result in a tri-partite dispute between the parties. The Court observed that if the plaintiff succeeds in the suit, the applicant and the plaintiff no.2 can settle their issues separately. Challenging this order, the present Misc. Petition has been filed. The further proceedings have been stayed by the order of this Court.

9. Challenging the impugned order, the learned counsel for the petition