Ajai Bindal and Another vs Prashant Gupta and Others

N.L. Ganguly, J.—This Civil Revision is directed against the order dated 23rd September, 1995 passed by the IV Addl. Civil Judge (Senior Division), Meerut substituting the names of Anil Gupta, Arvind Gupta, Prashant Gupta, Ajay Bindal and Sanjay Bindal under Order XXII, Rule 5, C.P.C. as legal heirs and representatives of late Sri Satendra Lal Gupta and also allowed the application (42ka) allowing the amendments prayed in the said application under Order 6, Rule 17, C.P.C.

In this revision, the opposite parties are represented by Sri Ashok Khare and Sri Sharal Srivastava, representing all the respondents except respondent No. 2, who is also represented by Sri Anurag Khanna. Since all the parties in the case are represented and the counsel for the respondents made a statement that they do not propose to file any counter affidavit and the documents filed with the application are stated to be sufficient which are not controverted, thus, without formerly admitting the civil revision or calling for the record of the court below, I consider it appropriate to finally hear the revision and dispose it.

Learned Senior Counsel for the applicant Sri S.P. Gupta placed the pedigree of the parties contesting the suits in the court below. The pedigree submitted is quoted below for convenience and appreciating the facts of the case.

SETH BANARSI DAS GUPTA (Died on 1.12.1986)

Seth Mohan La!

Seth Brij

Seth Jitendra Lai

Seth Satendra Lai

Gupta (died on

Bhusan Lai

Gupta (died on 9.1.94)

(Divorcee) (died on

17.8.88)

Bmdal .

6.7.95)

! I

/ 1

I I

j 1

Anil Arvind

Smt. Smt.

Prashant Smt.

Km. Km.

Gupta Gupta

Bimla Shashi

Gupta Sunita

Geetika Ruchika

(son) (son)

Devi Agarwal

(son), Gupta

(daughter) (daughter)

(widow) (daughter),

(wedow)

Ajay Bindal (son)

Sanjay Bindal (son)

The order impugned in the present civil revision arise out of Suit No. 219 of 1995. The plaintiff in the suit claimed the following reliefs which are quoted as under:

"(a) That by a decree of permanent injunction in favour of the plaintiff against the defendants No. 1 and 4, the defendants No. 1 and 4 be restrained from interfering in the joint possession of the plaintiff alongwith other copartners and shareholders of the H.U.F. of Seth Banarsi Das Gupta H.U.F. and its movable and immovable properties including M/s. Modern Industries, Sahibabad, district Ghaziabad in any way whatsoever, including damaging any property in any way whatsoever, on the basis of alleged forged and null and void family partition dated 15.1.1986 reduced in writing on 18.1.1986 allegedly by Seth Banarsi Das Gupta.

(b) That costs of the suit be awarded in favour of the plaintiff against the defendants.

(c) That any other relief which the court thinks fit and proper be also awarded in favour of the plaintiff against the defendants."

It is noteworthy that Sri Satendra Lal Gupta was arrayed as defendant No. 4 in the suit who died on 6.7.95. An application dated 10.7.95 was moved by the plaintiff seeking deletion of the name of satendra Lal Gupta on the ground that he was a divorcee and issueless person. Sri Brij Bhusan Lal Bindal, defendant No. 1 submitted an objection with affidavit controverting the application of the plaintiff Prasant Gupta. It was said by the defendant No. 1 Brij Bhushan Lal Bindal that Satendra Lal Gupta had left a Will dated 29.6.89 and have bequeathed all his movable and immovable properties of his nephews Ajay Bindal and Sanjay Bindal. It was claimed that the said two nephews were legal heirs of deceased Satendra Lal Gupta. Application under Order I Rule 10, C.P.C. was also submitted for impleading the aforesaid persons by them.

Plaintiff Prashant Gupta set up a case and pleaded that a Will dated 20.2.95 was left by Satendra Lal Gupta, deceased by which plaintiff Anil Gupta, Arvind Gupta, sons of late Mohan Lai Gupta, Ajay Bindal, Sanjay Bindal sons of Brij Bhusan Lal Bindal were shown as beneficiaries under the said Will.

The plaintiff disputed the correctness and genuineness and due execution of the Will dated 29.6.89. The plaintiff in the amendment application sought the amendments, quoted below:

"(1) That after Para 2, the following be allowed to be incorporated in the amendment application

4/1 Sri Ajay Bmdal.

4/2 Sri Sanjay Bindal.

Both sons of seth Brij Bhushan Lal Bindal, residents of Modern Industries, Sahibabad, District Ghaziabad.

(2) That thereafter the following Para2A be allowed to be incorporated in the plaint in between paras No. 2 and 3 as follows

Para 2A : That Seth Satendra Lal Gupta (Defendant No. 4) has died on 6th July, 1995 and according to the Will dated 20.2.1995 he has left five beneficiaries with the plaintiff Sri Prashant Gupta, Sri Anil Gupta and Sri Arvind Gupta sons of late Seth Mohan Lai Gupta, Sri Ajay Bindal and Sanjay Bindal sons of late Seth Brij Bhushan Lal Bindal. Seth Anil Gupta and Seth Arvind Gupta are already parties to the suit while the plaintiff is also a party to the suit, therefore, they do not require impleadment. The other two beneficiaries of the deceased Seth Satendra Lal Gupta as per Will dated 20.2.1995 Sarvashri Ajay Bindal and Sanjay Bindal are being impleaded as parties to the suit as defendant Nos. 4/1 and 4/2. As per Will dated 20.2.1995, all the five nephews of Seth Satendra Lal Gupta as stated aforesaid have succeeded to the estate of deceased Seth Satendra Lal Gupta on his death in equal shares."

It was argued by Sri S.P. Gupta that a copy of the Will dated 20.2.1995 alleged to have been executed by Satendra Lal Gupta, deceased was filed and no original document was filed before the court.

Another Suit No. 283 of 1994 is pending in the Court of Civil Judge (Senior Division), Meerut where Anil Gupta and Arvind Gupta are plaintiffs. There also it is said the original Will was not filed, alleged to have been executed by Satendra Lal Gupta. Objection by; Sri Brij Bhusan Bindal was filed, controverting the allegations of the plaintiffs.

For the decision in the present civil revision, this court has to examine the order of the court below allowing the application of the plaintiff substituting the heirs, as detailed in the earlier paragraphs; and also to examine and find the correctness, legality of the order passed for amendment under Order VI, Rule 17, C.P.C.

From perusal of the order impugned, it is apparent that from the xerox copy of the Will dated 20.2.95 by which Anil Gupta, Arvind Gupta, Ajay Bindal and Sanjay Bindal all are shown to be beneficiaries whereas the copy of the registered will dated 29.6.89 which is on record, shows only legatees of deceased Satendra Lal Gupta. The question of adjudication and discussion is whether the order under Order XXII, Rule 5, C.P.C. is conclusive and will be deemed to be final between the parties or the said question is open for adjudication at a later stage. Learned Counsel Sri S.P. Gupta placed the provisions of Order XXII, R. 5, C.PTC. and strenuously submitted that the provisions are such which clearly shows that once a decision is arrived at under Order XXII, R. 5, C.P.C., it will be final and could be readjudicated or decided in any further proceedings.

Learned counsel placed reliance on decision in AIR 1960 Kerala 79 Kunchikavu v. Kesawan Nayar. The Court held that question whether a person is legal representative is a question which is to be determined first before proceeding further with the suit. It further held "where a question arise as to whether any person is or is not the legal representative of a deceased plaintiff or deceased defendant, such question shall be determined by the Court." It is clear from the wording that when such a question arises, the court may decide it and it is equally clear that the court must determine before proceeding any further with the suit.

Sri S.P. Gupta, learned counsel placed reliance on AIR 1968 Punj 293 Ram Prakash and another v. Smt. Shamkari and others. The Punjab High Court deprecated the manner by which all the personsapplicants claiming to be legal representatives and heirs substituted as heirs of the deceased. It has also observed that this order will not in any way prejudice the validity of the Will in question nor the question of real heir to the deceased which is open between the applicant to contest. The learned Judge observed as under:

"Where 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."

It is observed that

"The court cannot absolve itself from the duty cast on it by the statute in this behalf by resorting to the practice of impleading all the alleged legal representatives and leaving that matter to be decided in a separate suit. Such a course is not warranted by the language employed in this rule."

Learned counsel Sri S.P. Gupta submitted that the order impugned suffers a manifest illegality of procedure as the court had not adhered to the provisions of Section 64 of the Evidence Act, based its finding for substitution of the heirs of the deceased without giving due opportunity to the revisionist for controverting the case of the respondents. The learned counsel submitted that the application decided by the court below for substitution of the heirs on affidavits was not correct and the procedure adopted was not a legal procedure. The court below could not utilise the statement of the revisionist in another suit in which in the substitution matter, the revisionist have not asked for permission to crossexamination. That statement given was in a different circumstances. The said circumstances cannot be said to be available in the present case. Sri S.P. Gupta also submitted that unless the original Will was placed before the court, it was wholly erroneous to pass orders for substitution relying on, photostat copy of a Will. The genuineness of a photostat copy of the will cannot be presumed. He submitted that the court is to require at the first instance the original document to be produced before the court and then to arrive at a decision, according to law. In case the original document is not available and the party seeks to adduce secondary evidence there is a requirement for request to adduce secondary evidence and it is after the permission of the court, then only such secondary evidence could be adduced in the case. Sri Gupta argued at length about the propriety and procedural irregularities about taking of evidence on affidavits. He placed reliance on provisions of Order XIX, Rule 2, C.P.C. It has been argued that affidavits were filed by the parties and specific request for summoning the witness for crossexamination was made. The court below declined to can the witness for crossexamination. The reason for not calling the witness for crossexamination is that is said to be that before the Civil Judge (Senior Division), Meerut, in the suit pending before the parties, paper No. 81 ordersheet shows that in the substitution matter, the parties'' counsel had made a statement that they would not adduce oral evidence. This circumstance was taken to be a conclusive fact by the court below that once the parties in another suit about the substitution since had made a statement not for adducing oral evidence, now they cannot ask for crossexamination of the witness. The court below perhaps lost sight of the fact that in the earlier suit in which such a statement was made, the heirs and beneficiaries shown in the will of that suit only three persons were there and in the present suit, the Will adduced shows that there are five beneficiaries including two Bindal brothers. Thus, the fact that once if a party states not to crossexamine an oral evidence, shall not be estopped to plead for and ask for permission to crossexamine in the circumstances if they are distinct and justified in calling the witness for crossexamination.

Learned counsel for the revisionist placed reliance on a decision reported in AIR 1988 SC 1381Smt. Sudha Devi v. M.P. Narayanan and others. This decision is not relevant for the present civil revision. The argument before the Hon''ble Supreme Court was that affidavit is not ''evidence'' as defined in Section 3 of the Evidence Act and cannot be utilised as such and the Hon''ble Supreme Court repelled this submission relying the provisions of Order XIX, Rule 1 or 2, C.P.C. Another decision reported in AIR 1989 SC 705Mumr Ahmad and others v. State of Rajasthan was cited by the learned counsel to submit that in a judicial proceeding evidence of a living person is possible by calling the witness to appear and stand for crossexamination unless substituted by an affidavit under Sections 295 and 407 (3), Cr. P.C. In the present Civil Revision this judgment is also not relevant. We are concerned herewith the applicability of Order XIX, Rule 1 or 2, C.P.C. thus this judgment is of no assistance in the present case. Another decision reported in AIR 1990 Raj 127Radha Kishan v. Navmtan Mal Jain and another was also cited by the learned counsel in which the Rajasthan High Court was considering a case for restoration of possession of land by relying on the affidavits of the parties, which evidence was not rendered after complying with the provisions of Order XIX, Rule 1 or 2, C.P.C.

The decisions cited by the learned counsel Sri S.P. Gupta are not very material or relevant but the fact that the court declined to call for the witnesses, whose affidavits had been filed, on the ground, which are wholly erroneous, is a substantial ground and the procedural irregularity committed by the court below. The court below was wrong in not calling the witness to appeal for crossexamination on the ground that the parties in another pending suit had made statement that they would not like to lead oral evidence. On this count the order of the court below substituting the heirs by the impugned order cannot be sustained.

The learned counsel for the applicant further vehemently argued that the photostat copy of the Will unless it is duly proved, is not admissible in evidence. He also submitted that secondary evidence could only be permitted after the person seeking to file such secondary evidence satisfied the court and the court records a finding accepting the secondary evidence. The learned counsel cited a decision reported in AIR 1966 SC 1457The Roman Catholic Mission v. State of Madras and placed para 8 of the said decision, which states that ''these documents undoubtedly would have thrown light upon the matter but they were not admissible because they were only copies. The originals were not produced at any time nor was any foundation laid for the establishment of the right to give secondary evidence''. This authority was cited to substantiate the argument that secondary evidence was wrongly permitted to be filed by the respondent. Another decision about admissibility of photostat copy of the document was cited, namely, the decision reported in AIR 1987 SC 1892Makhan Singh v. Narainpura Cooperative Agricultural Service Society Ltd. and another, wherein the Hon''ble Supreme Court was pleased to set aside the order of the Labour Court where the Labour Court had accepted the evidence of photostat copies of the exhibits in absence of the originals and there was no explanation given by the management for not producing the originals. The documents relied upon were rejected by the Hon''ble Court.

The factual statements already mentioned in the above paragraphs of this judgment show that the copy of the Will filed in the case was not duly proved nor there is any finding or order of the court for giving secondary evidence to be led by the respondent. The applicant denied the right of crossexamination on erroneous ground that in earlier proceedings between the parties in another suit the parties'' counsel had made a statement not to lead oral evidence. The reason of the court below that the applicantrevisionist was perhaps intending to delay the disposal of the suit is also not correct. The suit is of 1995 and the courts are not supposed to adopt hurriedly illegal procedure for the sake of early disposal of the suit and ignore the mandatory provisions of law.

Sri Ashok Khare, counsel for the contesting respondents submitted that the order passed under Order XXII, Rule 5, C.P.C. is not to operate as res judicata and for this submission he relied on the following decisions:

AIR 1981 P and H 138Mohinder Kaur v. Piara Singh, 1970 ALJ 1161Syed Ashfaq Husain v. Deputy Director of Consolidation, Hardoi.

The Punjab and Haryana Court judgment is a Full Bench judgment wherein it was said that the order under Order XXII, Rule 5, C.P.C. would not operate as res judicata between the same parties or their successorininterest or their heirs in a subsequent proceedings. 1970 ALJ 1167 is a decision in Special Appeal arising out of a writ petition under Article 226 of the Constitution and the Division Bench in the said judgment declined to examine the procedural technicality not raised before the concerned authorities but raised for the first time in the writ petition. This ruling is not applicable in the present Civil Revision.

The aforesaid decisions cited by the learned counsel for the respondent Sri Ashok Khare do not touch the controversy raised in the present Civil Revision. The courts while dealing with such matter should also bear in mind that justice is to be administered according to law as well as should also bear in mind that questions be not left for further and further litigation between the parties. The procedural law has to be adhered as much possible as is indicated in the procedural law. It cannot be said that the matter should be permitted to reach further finality and decision and decree in the suit and then at a later stage the parties be asked to get a decision from another competent court as to the legauty of a question whether two persons who are sought to be added besides earlier three persons as legal representatives and heirs of the deceaseddefendant No. 1. Under the procedural law as to the admissibility of evidence permission is to be given for adducing secondary evidence. Unless permission was there, the evidence could not be taken into consideration. These are such questions, which may be left out for adjudication at a later stage simply on the ground that an erroneous order may not be operative as res juaicata between the parties. If that argument is accepted, then it be opening a door for future litigation between the parties, which is not the intention of law.

Sri Ashok Khare submitted that the provisions of Order XIX, Rule 2, C.P.C. is not mandatory and is discretionary. He referred to the citations reported in AIR 1968 MP 33, AIR 1963 AP 445, AIR 1967 Guj 214 and AIR 1975 All 398. The learned Counsel attempted to submit that the court below was under no mandatory obligation to call for the witnesses for crossexamination or record such a finding as to why evidence of affidavits was permitted by him. If this argument is accepted, then it would be laying a wrong law that courts are at liberty to pass illegal orders and exercise a legal discretion in an illegal manner. The discretion is a legal discretion, which has to be exercised in lawful manner. Sri Ashok Khare has not been able to place any such document or controvert the submission advanced by Sri S.P. Gupta that the court below had declined to permit crossexamination of the witnesses whose affidavits had been filed on the ground that in earlier proceedings in another suit pending the counsel for the parties had made statement not to adduce oral evidence. It was treated akin to an estoppel against the applicant that once the applicant had stated not to adduce oral evidence, he is estopped from being questioned in crossexamination to the witnesses.

The overall discussion, stated above clearly shows that the court below passed the impugned order in a manner not justified according to law. The procedure adopted was illegal and unwarranted and such an order cannot be allowed to stand. I have no option but to allow the revision, set aside the order of the court below impugned and remand the case to the court below for decision afresh on the substitution application in accordance with law keeping in view the observations made above as well as on the application for amendment, if necessity arises for such amendment and impleadment, as claimed by the respondent.

Before parting with the Civil Revision I consider it necessary to make observation that another suit No. 283 of 1995 Anil Gupta and others v. Brij Bhushan Lal Jindal and others pending in the court of the Civil Judge, Meerut is also between the parties and several questions therein are common. In case an application is moved before the learned District Judge, Meerut for transfer of both the suits to such a court having competent jurisdiction for decision in both the suits by the same court, such application may be allowed and the parties be directed to get both the suits decided accordingly.

Further proceedings in Suit No. 283 of 1995 is not proceeding in court below on the basis of the statement made by the learned counsel for the respondent Sri Ashok Khare and it was understood that the case shall not proceed upto 19.10.1995, I consider it necessary to make observation that the court below before proceeding with the suit shall proceed to decide the substitution application in accordance with the decision given in this revision and some date may be fixed after two weeks from the date of filing of a certified copy of this judgment before it.

This Civil Revision is allowed. The parties shall bear their own costs.

Revision allowed.