MUPPALANENI RAVINDRA BABU Vs. MUPPALANENI VENKAYAMMA

JUDGEMENT

(1.) The revision petitioner herein filed IANo.164 of 1989 seeking to be impleaded as legal representative of the deceased-1st appellant in AS No.26 of 1984 on the file of the Subordinate Judge, Chirala on the strength of an alleged Will dated 30-12-1988. Respondent Nos.5 and 6 herein also filed another IA No.91 of 1992 seeking them to be impleaded as legal representatives of the deceased-1st appellant alleging mat they are her step children and that she died intestate. The Court below allowed IA No.91 of 1992 and dismissed IA No.164 of 1989 disbelieving the Will. Aggrieved by the dismissal of IA No.164 of 1989 the present revision petition has been filed. Submissions: The learned Counsel appearing on behalf of the petitioner contended before the learned single Judge that the Court below should have impleaded him and that the validity of the Will could have been decided in the main suit.

(2.) The learned Counsel appearing on behalf of the petitioner inter alia submits that as an order passed in terms of Order 22, Rule 5 of the Code of Civil Procedure does not operate as resjudicata, there was no bar in impleading both the petitioner as also the opposite party by allowing both the applications. The learned Counsel would contend that there is no bar in law in substituting the contesting parties and consequent determination of the dispute as regards genuineness or otherwise of the Will. Strong reliance in this connection has been placed on S. Charanjit Singh v. V. Bharatinder, AIR 1988 P&H 123, Dokala Buchiraju v. Dokala Bangaramma, 1999 (1) ALD 676, Mst. Deu v. Lalxmi Narayan, (1998) 8 SCC 701, L Chandrasekhara Sarma v. J. Vimala Kumari., 1993 (2) ALT 276.

(3.) The learned Counsel appearing on behalf of the respondents, on the other hand, would submit that Order 22, Rule 5 envisages determination of the issue as regards who should be substituted as legal representative in place of a deceased party. It was submitted that having regard to the fact that the petitioner has not questioned the order passed in favour of the opposite party in IA No.91 of 1992, he cannot be permitted to reopen the issue. Reliance in this connection has been placed on Radha Krishna v. Shyam Sundar, AIR 1964 Ori. 136 and G. Savitramma v. K. Ramadevi, 1991 (1) ALT 453. Findings: Order 22, Rule 5 of the Code reads thus: Determination of question as to legal representative : 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: Provided that where such question arises before an Appellate Court, that Court may, before determining the question, direct any Subordinate Court to try the question and to return the records together with evidence, if any, recorded at such trial, its findings and reasons therefor, and the Appellate Court may take the same into consideration in determining the question.