Bharpur Singh vs Jangir Kaur

S.S. Sodhi, J. (Oral)

The controversy here is with regard to the impleading of the legal representatives of the deceased plaintiffDarbara Singh.

It appears that on May 11, 1985, a consent decree for declaration and possession of the land in suit was obtained by Bharpur Singh against the said Darbara Singh. Darbara Singh filed the present suit on July 22, 1986 seeking the setting aside of the said decree on the ground that it had been obtained by fraud and misrepresentation. Sometime during the pendency of this suit, Darbara Singh died Jangir Kaur claiming to be the sister of Darbara Singh deceased then filed an application seeking to be impleaded as his legal representative. The other person who applied to be so impleaded was Ram Singh, who claimed under a Will. The trial Court, without determining who in fact was the legal representative of Darbara Singh deceased proceeded to substitute both Jangir Kaur and Ram Singh in place of Darbara Singhplaintiff. On the face of it, this is indeed an untenable order, as a plain reading of the provisions of Rule 5 of Order 22 of the Code of Civil Procedure would show that where a question arises whether or not any person is the legal representative of a deceased plaintiff, it is required to be determined by the Court. This has also been so held by this Court in Mahant Ram Prakash v. Smt. Shankri, 1967 PLR 1012, where it was laid down that when a dispute arises as to who is the legal representative of the deceasedplaintiff for defendant, that question has to be determined by the Court and that too before proceeding further with the suit. It was also observed that the Court cannot absolve itself from the duty cast upon it, in this behalf, by merely resorting to the practice of impleading all the alleged legal representatives and then leaving the matter to be decided in a separate suit.

Such thus being the settled position in law, the impugned order of trial Court impleading Jangir Kaur and Ram Singh as the legal representatives of Darbara Singh deceased is hereby set aside and the matter is remitted to it for fresh decision in accordance with the provisions of Rule 5 of Order 22 of the Code of Civil Procedure.

This revision petition is consequently accepted. Costs of this petition shall be costs in the suit. Counsel fee Rs. 500/.

Parties are directed to appear before the trial Court on July 15, 1991.