SUNDER LAL Vs. PRAHLAD MAL ROHIDA

JUDGEMENT

(1.) THE present writ petition filed under Article 226 and 227 of the Constitution of India is directed against the order dated 17.3.08 passed by the Addl. District Judge, Kota (hereinafter referred to as 'the appellate court') in Civil Regular Appeal No. 8/07, whereby the appellate court has rejected the application filed by the petitioner -applicant under Order XXII Rule 3 of CPC and dismissed the appeal as having been abated. The short facts giving rise to the present petition are that the respondent -plaintiff had filed the suit being Civil Suit No. 2/02 against late Shri Hukmat Mal, father of the present petitioner, in the court of Addl. Civil Judge (JD) No. 1, South, Kota, (hereinafter referred to as 'the trial court') on the ground of personal and bonafide necessity. The said suit was decreed vide the judgment and decree dated 18.9.06. The original -defendant Hukmat Mal therefore preferred an appeal being Civil Regular Appeal No. 8/07 before the appellate court. During the pendency of the said appeal, the said appellant -original defendant Hukmat Mal expired on 19.11.06, and therefore an application under Order XXII of CPC for substitution of his legal representatives came to be filed by the petitioner on behalf of the legal representatives of the said Hukmat Mal. The said application was resisted by the present respondent on the ground that the petitioner was not the legal representative of the deceased appellant Hukmat Mal and, therefore, the application as well as the appeal deserve to be dismissed. The appellate court vide the impugned order dated 17.3.08 dismissed the said application of the petitioner and also dismissed the appeal filed by the deceased appellant Hukmat Mal, on the ground of having been abated. Being aggrieved by the said order, the present writ petition has been filed.

(2.) THE learned senior counsel Mr. R.K. Agrawal for the petitioner submitted that the impugned order passed by the appellate court suffers from serious illegality, inasmuch as the appellate court had dismissed the application of the petitioner for bringing on record the legal representative of the deceased appellant Hukmat Mal, without holding any enquiry as contemplated under Order XXII Rule 5 of CPC. According to him the petitioner was ordinarily carrying on the business with his father in the suit premises, as a member of his family upto his death and, therefore was the tenant under Section 3(7) of the Rajasthan Premises (Control of Rent & Eviction) Act, 1950 (hereinafter referred to as 'the said Act') and, therefore, the petitioner being the legal representative of the deceased appellant, had right to pursue the appeal before the appellate court. Mr. Agrawal has relied upon the decision of the Apex Court in the case of Kanhaiya Singh Santok Singh & Ors. v. Kartar Singh : (2009) 5 SCC, 155, in support of his submissions.

(3.) AT the outset, it may be mentioned that on the death of the sole plaintiff -appellant, the court can permit a legal representative of the deceased plaintiff -appellant to be made a party if an application is made in that behalf within the prescribed time limit, otherwise the suit -appeal would stand abated, as contemplated under Order XXII Rule 3 of CPC. As per the definition of legal representative contained in Section 2(11) of CPC, "legal representative" means a person who in law represents the estate of a deceased person, and includes any person who intermeddles with the estate of the deceased. Rule 5 of the Order XXII also provides that where a question arises 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, provided that where such question arises before the appellate court, that court may before determining the question direct any subordinate court to try the question and to return the record together with the 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.