Vallabh Das Sanadhya vs Brijkanya and Others

Gopal Krishan Vyas, J.—In this appeal filed under Order 41 Rule 1, C.P.C., the appellant is challenging the order dated 12.08.2008 passed by the Addl. District Judge, Nathdwara in Civil Case No. 13/2004, whereby, the trial Court allowed applications under Order 22 Rule 10, C.P.C. and Order 1, Rule 10, C.P.C. filed by the respondent-applicant.

Brief facts of the case are that the plaintiff-respondent No. 1 Smt. Brijkanya filed suit for partion against appellant and other respondent-defendants in respect of property mentioned in Schedule-A of the plaint. In the plaint, it is mentioned that plaintiff and defendants are having one-fifth share each in the property in question and prayer was made by the plaintiff that her share by way of decree of partion may be allowed.

A written-statement was filed and defendant-appellant No. 1 contested the suit. During the pendency of the suit, plaintiff Smt. Brij Kanya passed away on 12.03.2006. Thereafter, respondent No. 5 Smt. Manisha filed application under Order 22 Rule 10 and Order 1 Rule 10 of the CPC and it is mentioned in the said application that deceased Smt. Brijkanya executed a will during her life-time, therefore, by virtue of the said will she became entitled to be substituted as plaintiff in place of late Smt. Brijkanya.

A reply to the aforesaid application was filed by the contesting defendant-appellant in which the appellant denied all the averments and genuineness of the alleged will. The Court below, however, passed order on 12.08.2008 whereby the application filed by the applicant-respondent was allowed.

It is contended by learned Counsel for the appellant that the order passed by the learned trial Court is illegal and passed without assigning any reasons. It is further argued that application filed under Order 22 Rule 1, C.P.C. is completely misconceived because the applicant has specifically stated in her application that the deceased plaintiff executed will in her favour and by virtue of that will the applicant has become a legal representative of the deceased plaintiff, therefore, she is entitled to become party in the suit, therefore, for the above contention, it is submitted that there is specific provision available in the CPC for substitution for any deceased person under Order 22 Rule 3, C.P.C. but the applicant has filed a misconceived application.

Learned Counsel for the appellant vehemently argued that applicant claimed hereself to be legal representative of deceased plaintiff being legatee according to Section 2(11), C.P.C. Such legatee, however, cannot claim right to file application under Order 22 Rule 10, C.P.C. and application can only be filed under Order 22 Rule 3, C.P.C. to substitute the deceased plaintiff within presecibed time period. As per learned Counsel for the appellant, the deceased plaintiff passed away on 12.03.2006 and application under Order 22 Rule 10, C.P.C. was filed on 28.02.2007, therefore, the applicant has obviously filed misconceived application under Order 22 Rule 10, C.P.C. which is not proper application under the law. It is contended by learned Counsel for the appellant that the applicant was under obligation to file application within 90 days but the application is filed after gross delay, i.e. after more than 10 months of the date of death of original plaintiff Smt. Brijkanya, therefore, it is submitted that the order impugned dated 12.08.2008 may be quashed.

In support of his contention, learned Counsel for the appellant has invited my attention towards judgment of the Allahabad High Court in the case of Jatav Panchayat Committee and Anr. v. VIIth Jatav Panchayat Committee, Etawah and another Vs. VIIth Additional District Judge, Etawah and others, and judgment in the case of Anang Pal Vs. Pearey Lal and Others,

Per contra, learned Counsel appearing on behalf of the respondent, first of all, submitted that for adjudicating the present controversy, language of Order 22 Rule 10, C.P.C. is required to be taken into consideration. Learned trial Court after perusing Order 22 Rule 10, C.P.C. has rightly found that respondent-applicant is entitled to be substituted in place of deceased plaintiff in view of the fact that a will was executed in her favour by the deceased plaintiff with regard to her share in the property in question, therefore, order impugned in perfectly in consonance with law and there is no error in the same warranting any interference.

I have considered the rival submissions and also perused the order under challenge.

First of all, for adjudication of the controversy, it is relevant to examine the provisions of Order 22 Rule 10, C.P.C. which is as follows:

Order 22 Rule 10.- Procedure in case of assignment before final order in suit. (1) In other cases of an assignment, creation or devolution of any interest during the pendency of a suit, the suit may, by leave of the Court, be continued by or against the person to or upon whom such interest has come or devloved.

(2) The attachment of a decree pending an appeal therefrom shall be deemand to be an interest entitling the person who procured such attachment to the benefit of Sub-rule (1).

Upon perusal of the above provisions, it is abundantly clear that there is procedure in the case of assignment before final order is passed in the suit. It is specifically provided that in other cases of assignment, creation or devolution of any interest during the pendency of a suit, by leave of the Court, the suit may be continued by or against the personj to or upon whom such interest has come or devolved.

It is not disputed in this case that will was executed by the deceased plaintiff late Brijkanya in favour of the applicant regarding her share in the property in question during the pendency of the suit. Therefore, prayer was made in the application filed under Order 22, Rule 10, C.P.C. for continuity of the suit while substituting the applicant as plaintiff in place of deceased Brijkanya. Legislature has specifically provided under Order 22 Rule 10, C.P.C. that if an assignment, creation or devolution of any interest happens to be the case during the pendency of the suit, then, by leave of the Court, the suit may be continued by or against the person to or upon whom such interest has come or devolved. In this view of the matter, no error apparent has been committed by the trial Court while passing the impugned order.

The judgment cited by learned Counsel for the appellant is altogether different because in the case of Anang Pal v. Pearey Lal and Ors., reported in AIR 1986 Punjab & Haryana 87, an application under Order 22 Rule 3, C.P.C. was filed in a suit for declaration and for grant of permanent injunction on the basis of so called will and, the said application was decided. Thereafter, the question of maintainability of appeal against the said order was in question. The facts of that case are altogether different than the present case.

Likewise, in the judgment reported in AIR 2000 Allahabad 253, the question of maintainability of application under Order 22 Rule 3, C.P.C. without any application for condonation of delay was in issue, therefore, in my opinion, the judgments cited by learned Counsel for the appellant have no application to the facts of the present case.

In this view of the matter, the order impugned passed by the trial Court is perfectly within the four corners of law which does not require any interference.

Consequently, this appeal is dismissed.