Radha Agrawal Amd Ors vs Dipesh Agrawal

Goutam Bhaduri, J

Instant petition is against the order dated 15/01/2018 whereby an application under Order 22 Rule 3 read with section 151 of CPC was decided and

allowed in favour of the respondent Dipesh Agrawal and he was substituted on the basis of the registered Will.

Brief facts of this case is that one Santara Devi had filed a civil suit for ejectment against Mohanlal petitioner herein. During pendeny of the suit,

Santara Devi breathed her last on 14/11/2014 and thereafter an application was filed under Order 22 Rule 3 read with Section 151 of CPC that the

property in question has been bequeathed in favour of the respondent by way of a registered Will, therefore he may be substituted as plaintiff in the

suit. The court below allowed the application under Order 22 Rule 3 read with Section 151 of CPC and directed for substitution of the legal heirs on

the basis of the Will. The said order is under challenge.

Learned counsel for the petitioner would submit that the dispute is inter se in between the family members and ejectment is not been sought on the

ground that it is landlord tenancy suit. It is further contended that other legal heirs of the Santara Devi have instituted a suit wherein alleged WILL is

in question. He further submits that the substitution of the respondent was objected on the ground that Will in question is void, therefore if such

substitution is made on the basis of the Will, ipso facto it will have the effect of decision in the subsequent civil suit, therefore enquiry should have been

conducted for the authenticity of the Will or in alternate the petitioners be allowed to be made a party in the suit to safeguard any adverse finding

against them.

Perused the document attached with this petition. One suit wherein application under Order 22 Rule 3 of C.P.C. was allowed and Dipesh Agrawal

was allowed to be arrayed as plaintiff was instituted by Santara Devi against Mohan Lal. In such suit, ejectment has been sought for alongwith

damages. The pleading of such suit would show that deceased Santara Devi has sought for possession on the ground of inheritance and declaration to

the right to property is claimed. In other word the ejectment was not sought on the basis of relation of landlord & tenant. In such suit after death of

Santara Devi, an application having been filed under Order 22 Rule 3 of C.P.C. that Dipesh Agrawal has been directed to be impleaded by the

impugned order.

Perusal of the record would show that other relatives i.e. Rahul Agrawal and Ashok Agrawal have also filed another suit wherein in the pleading

and relief would show that averments are made that the Will dated 14.11.2014 executed in favour of Dipesh Agrawal be declared as illegal and void,

which is the basis to allow the application under Order 22 Rule 3 of C.P.C. in the impugned order.

Reading of Order 22 Rule 3 of C.P.C. would show that it talks about brining of the ""legal representative"" and not the ""legal heir"" and it do not take

into sweep the legal heir. Therefore, by allowing the application under Order 22 Rule 3 of C.P.C. it will not operate as res judicata for any finding in

respect of the Will dated 14.11.2014, which is in question. The character really occupied by Dipesh Agrawal cannot be conclusively drawn on the

basis of fact he has been directed to be substituted as legal representative by such order under Order 22 Rule 3 of C.P.C. The legal representative

cannot be said to be legal heir. However, considering the fact another suit is pending in between parties in respect of same Will the submission made

by the petitioners that they may be also joined as a party so that any finding may not be recorded in respect of the Will or in case any finding is

recorded they can agitate as their right has a considerable substance specially looking to the rights of the parties.

As has been settled in case of Suresh Kumar Bansal v. Krishna Bansal & Another reported in (2010) 2 SCC 162 that determination of question as

to who is legal representative of the deceased plaintiff or defendant under Order 22 Rule 5 of C.P.C. is only for the purpose of bringing legal

representative on record for conducting of those legal proceedings only and does not operate as res judicata and the inter se dispute between the rival

legal representative has to be individually tried and decided. Here in this case, as would appear that another civil suit is already pending, therefore that

rival claim of the parties are already pending before the Court.

Further, following the principles laid down in (2010) 2 SCC 162 in order to shorten the litigation and to consider the rival claim of the parties and also

considering the future prospect of the parties about the litigation and the fact the Will dated 14.11.2014 is in question, the petitioner herein is directed to

be arrayed as a party in the civil suit No.453/2018 and he may be arrayed as defendant in the civil suit. The petitioner is allowed to participate in the

proceeding so that he may defend any finding touching the Will and may place on records the principles laid down by the Supreme Court with respect

to the character of a substituted legal representative to avoid the multiplicity of proceedings in future.

Accordingly, the petition is allowed with the aforesaid observations.