O R D E R

Since in both the above captioned petitions, challenge has been laid to order dated 5.10.2019 passed by the learned Civil Judge (Senior Division) Shimla, District Shimla, H.P., in CS No. 103-1 of 2011/10 and CS No. 99-10 of 2007, titled Shri Aswani Sood v. Mohini Devi and parties are the same, both the cases were beard together and are being disposed of vide common judgment.

2.2.2017, leaving behind her husband Sh. Prem Chand Sood, Son Shri Ashwani Sood, two daughters namely Smt. Lalita and Babita and Sanjay Sood-defendant No.2. Aforesaid prayer made on behalf of the plaintiff came to be resisted on behalf of defendant No.2 Sanjay Sood, who alleged that he is the sole LR of the deceased original defendant No.1-Smt. Mohini Sood as she has bequeathed her entire property in his favour by way of a registered will. Simultaneously, similar plea also came to be taken by him in an application filed by him under Order 22 Rule 4 CPC, seeking therein his substitution in place of original defendant No.1-Smt. Mohini Sood. Learned trial Court having clubbed both the applications decided the same vide common order dated 5.10.2019 (Annexure P-7), whereby applications having been filed by the plaintiffs for bringing on record the LRs as named herein above in place of deceased defendant Mohini Sood, came to be dismissed and application having been filed by defendant No.2 Sanjay Sood, praying therein for his substitution in place of original defendant No.1-Smt. Mohini Sood came to be allowed.

3. Being aggrieved and dissatisfied with aforesaid order dated 5.10.2019, passed by the learned Civil Judge (Senior Division) Shimla, District Shimla, H.P., in applications detailed herein above, plaintiff has approached this Court in the instant proceedings filed under Article 227 of the Constitution of India, praying therein to set-aside aforesaid order and thereafter allow the applications filed by him for bringing on record the LRs of the deceased original defendant No.1-Smt. Mohini Sood as detailed herein above.

4. Pursuant to notices issued in the instant proceedings, Mr.Vipin Pandit, Advocate has put in appearance on behalf of respondents No. 1 (b) and 1(c), whereas Mr. Abhishek Sood, Advocate, has put in appearance on behalf of respondent No. 1(a) Sh. Prem Chand Sood, who happens to be father of defendant No.2 Sanjay Sood, whose prayer for substitution in place of original defendant No.1-Smt. Mohini Sood has been rejected.

5. Mr. Ajay Kumar, learned Senior counsel appearing for the plaintiff, while making this Court to peruse the order dated 5.10.2019, vehemently argued that same is not sustainable in the eye of law because at no point of time, prayer, if any, made on behalf of the plaintiff for bringing on record the LRS of deceased defendant Mohini came to be considered and decided by the court below, rather court below merely placing reliance upon the will placed on record by the defendant No.2 Sanjay Sood proceeded to order for his substitution in place of original defendant-Smt. Mohini Sood. While placing reliance upon the judgment dated 26.7.2016, passed by the High Court of Karnataka in case titled Gurubai v. The Govt. of Karnataka in civil revision petition No. 200015 of 2015, Mr. Ajay Kumar, learned Senior counsel, argued that once dispute with regard to will, if any, executed in favour of defendant No.2 Sanjay Sood was raised by the plaintiff, court below ought to have decided the same issue at the first instance before ordering substitution of defendant No. 2 on the basis of will allegedly executed in his favour by the original defendant No.1-Smt. Mohini Sood. To substantiate his aforesaid argument, Mr. Ajay Kumar, learned Senior Counsel, also placed reliance upon the judgment 3.3.2010, passed by Punjab and Haryana High Court in CR No. 7785 of 2009 titled Shashi Ram v. Vijender , wherein it came to be held that if a question arises as to whether any person is or is not the legal representative of the deceased plaintiff or defendan