BADRI Vs. MILAPCHAND AND ORS.

JUDGEMENT

(1.) This petition under Article 227 of the Constitution of India impugns the order dated 21 -1 -2015 passed by the Civil Judge (Junior Division) Kekri, District Ajmer, whereby the petitioner -defendant No. 2's (hereinafter 'the defendant') application under Sec. 151 CPC was dismissed and an application filed by respondents -plaintiffs (hereinafter 'the plaintiffs') under Order 22 Rule 4 CPC allowed.

(2.) The facts of the case are that suit No. 88/2011, titled Milap Chand Vs. Balu & others, was laid before the trial court for permanent injunction in respect of a plot 252.78 sq. yards in village Gujarwada Tehsil Kekri. The plaintiff Milap Chand expired during pendency of the suit and on an application under Order 22 Rule 3 CPC, his legal representatives were taken on record on 4 -5 -2013 and amended cause -tile filed.

(3.) The defendant then filed an application under Sec. 151 CPC objecting to the legal representatives of the original plaintiffs, now respondents before this court, from being taken on record inter alia on the ground that there was no succession certificate in the name of the purported legal representatives nor any authenticated Shajra (family tree) evidencing that the alleged legal representatives were indeed entitled to be taken on record in substitution for the deceased plaintiff. On consideration of the matter, the trial court held that substitution under Order 22 Rule 3 CPC had been allowed on 22 -3 -2013 inter alia on the basis of a sale certificate issued under Order 21 Rule 94 CPC by the court of Additional District Judge Kekri in civil suit No. 25/2004 and Civil Execution Application No. 02/2006 establishing that Kamal Kumar and Vimal Kumar were indeed the legal representatives of the deceased Milap Chand. It was held that in this view of the matter no question to the said legal representatives being impleaded in substitution for the plaintiff in the suit for permanent injunction before the trial court unjustly and incorrectly could arise and the application was liable to be rejected. The trial court further held that in any event the other objection to the impleadment under Order 22 Rule 3 CPC as to whether the suit property was that of the plaintiff or not was not a matter which could be relevant for the substitution of legal representatives of the plaintiff on his death as the said issue was amenable to adjudication only on the basis of evidence brought on record during the trial.