DASHRATH RAO KATE v. BRIJ MOHAN SRIVASTAVA

Citation: [2009] 15 S.C.R. 643

Court: Supreme Court of India

Bench: MARKANDEY KATJU, V.S. SIRPURKAR

Case summary

DASHRATH RAO KATE v. BRIJ MOHAN SRIVASTAVA.pdf

Judgment text

[2009] 15 (ADDL. ) S. C. R. 643 DASHRATH RAO KATE f - v. BRIJ MOHAN SRIVASTAVA (Civil Appeal No. 1621 of 2004) NOVEMBER 03, 2009 [MARKANDEY KATJU AND V. 5. SIRPURKAR, JJ. ] l Code of Civil Procedure, 1908- Or. 22, r. 5 - Eviction suit - Original owner died - Appellant filed application for impleadment as LR of original owner on basis of Will executed by her - Application allowed - Respondent-tenant filed Revision - High Court remanded the case to trial Court with direction to determine and substitute the legal heir of \_ original owner - Full-fledged inquiry conducted by trial Court under Or. 22, r. 5, whereafter said Will held proved and appellant brought on record as LR of original owner - Order 't ____,. - not challenged - Parties thereafter led evidence and trial court . decreed the eviction suit on ground contemplated u/s. 12(1)(c) and 12(1)(e) of the Act-Order upheld in appeal - High Court, - however, set aside eviction order holding that inquiry under Or. 22, r.

5 was of summary nature and limited only to determination of right of appellant to be impleaded as LR of original owner, hence, any finding in that inquiry was not ... > binding on respondent at final stage of suit and appellant was required to again prove the Will in order to establish his ownership - Whether appellant had to lead fresh evidence all over again to prove his status on basis of Will, which was held proved in enquiry under Or. 22, r. 5 - Held, No - Once the Will was held proved, and in the same suit, further evidence was led, there was no point on part of appellant to repeat all his evidence all over again - The question was finally decided _. under Or. 22 r. 5 and in the same suit, it could not be re- "' agitated - Moreover, respondent could not have challenged the Will at all as he was an utter outsider and had no interest in the property as the owner - M. P. Accommodation Control Act - s. 12(1)(c) and (e). """ In an eviction suit under M. P.

Accommodation Control Act, appellant filed application for impleadment as legal representative of 'S', the original owner of the house, who had since deceased, on basis of a Will executed by her. The application was allowed. Against the impleadment, respondent-tenant filed Revision, on {. which the High Court remanded the case to trial Court with direction to determine and substitute the legal heir of 'S'. Full-fledged inquiry was conducted by trial Court under Or. 22, r. 5, CPC, whereafter the said Will was held to be proved and the appellant was brought on record as legal representative of '5'. The order was not challenged and it became final. The parties thereafter led 1 _I evidence and the Trial Court decreed the eviction suit on ground contemplated under Sections 12(1)(c) and 12(1)(e) of the M. P. Accommodation Control Act. The order was upheld in appeal. On second appeal, the High Court set aside the eviction order holding that inquiry under Or. 22, r.

5, CPC was of the summary nature and was limited only to the l determination of the right of appellant to be impleaded as the legal representative of 'S', hence, any finding in that inquiry was not binding on respondent at final stage of the suit and appellant was required to again prove the Will in order to establish his ownership. Hence the present appeal. Allowing the appeal, the Court HELD: 1. 1. The view of the High Court that the Will had to be proved again, is incorrect. Normally, an enquiry DASHRATH RAO KATE v. BRIJ MOHAN SRIVASTAVA645 under Or. 22 r. 5, CPC is of a summary nature and findings ... ). therein cannot amount to res judicata, however, that legal position is true only in respect of those parties, who set up a rival claim against the legatee. [Paras 15 and 16) [656-A-C] 1. 2.

In the present case, when the question regarding the Will was gone into in a detailed enquiry, where the evidence was recorded not only of the appellant, but also of the attesting witness of the Will and where these witnesses were thoroughly cross-examined and where the respondent also examined himself and tried to prove that the Will was a false document and it was held that he had utterly failed in proving that the document was false, particularly because the document was fully proved by the appellant and his attesting witness, it would be futile to expect the witness to lead that evidence again in the main suit. [Para 16) [656-E-G] )- ... 1. 3. It was at the instance of the High Court in the revisional jurisdiction that the direction was given that the Trial Court should first decide as to who could be the legal representative of 'S' and after complete enquiry, the • Trial Court held the Will to be proved.

The Will was not only attacked by the appellant on its proof, but also on merits, inasmuch as the respondent went on to contend ... r - >. before the Trial Court during that enquiry that the Will was unnatural, unfair and was executed in doubtful circumstances. The Trial Court, however, rejected this contention. On the other hand, the Trial Court found on merits that the appellant was living with 'S' and she had ). adopted him orally. [Para 16) [656-G-H; 657-A-B] 1. 4. Clear cut findings were given by the High Court .... ~ that from the evidence of PW-2, the attesting witness, it was clear that 'S' had signed in his presence and he had also signed in presence of 'S' and had also seen the other attesting witness signing the Will and attesting the same. Not only this, but the Trial Court also wrote a finding that .... ,. the objection raised b,y the respondent that 'S' was not ~ in a position to understand the Will· on account of her .

poor physical condition, waS' ~lso rejected by the Trial Court. U was also noted that the Will was executed six years prior to her death and as such, there was no question of 'S' being suffered with any mental or physical disability for executing the Will. Therefore, it is on this basis that the Will was held to be proved. Once this was the position and in the same suit, the further evidence was ·~ led, there was no point on the part of the appellant to repeat all this evidence all over again. [Para 17] [657-C- F] 1. 5. On evidence in the present case, the respondent did not do anything and did not even challenge the evidence of the appellant that he had become owner of the Will. Merely because· the evidence of respondent and PW-2 was not repeated all over again, it cannot be held i that the appellant could be non-suited on this ground. --- [Para 17] [658-B-C] 1. 6. The question regarding the appellant's right to represent was closed.

There could be a second suit, questioning his entitlement on the basis of Will, but, there is no such challenge by anybody to his status as a proved independently. The High Court also went on to record a finding that the appellant herein was not a family member of Suktliabai as she was not survived by any class I heir. In short, ~ the High Court held that the Will was not proved independently, ;. though on its basis, the appellant/plaintiff was allowed to be brought as a legal representative of Sukhiabai, and proceeded to dismiss the suit. 8. We are unable to agree with the reasoning of the High Court. was a tenant at a monthly rent of Rs. 170/- of the whole house, t but later on, the respondent/defendant had vacated one room of his tenancy and handed over it to Sukhiabai and retained 2 rooms and bathroom and the rent was fixed at Rs. 130/- per ;i month. He also pointed out that tenant had not paid any rent 8 from 1. 1. 1994.

He also reiterated his relationship with Sukhiabai and the facts regarding the will, as also his bonafide personal need of the rented premises. 12. In his written statement, the tenant-respondent admitted Sukhiabai to be his landlady and also accepted about the rent note dated 10. 2. 1980. He also again denied that the appellant/ plaintiff had become owner and also denied his need. On that basis, issues came to be framed, which are as under:- (i) Whether there is relation of land lord and tenant between plaintiff and the defendant? (ii) Whether the defendant has not paid/cleared outstanding rent from 1. 1. 1984 to the plaintiff? (iii) Whether the plaintiff is in genuine need of the suit accommodation for his own residential purpose? (iv) Relief and Costs? \. 13.

The evidence was again led by the appellant, wherein ) he asserted that the respondent/defendant was the tenant of Sukhiabai and that he had become his tenant now as per the will, since he has become owner on the basis of the will. 'He also reiterated the will (Exhibit P-1 ), regarding which Court had given decision in the enquiry under Order 22 Rule 5 CPC. He then deposed about his need. We have seen the crossexamination of this witness by the respondent/defendant, which is lengthy cross-examination and very strangely, we find not a > .. single relevant question asked to him about the will. He was cross-examined mainly as regards his need. In para 18, a stray suggestion was given that Sukhiabai had not executed the will • in his favour and that he had manipulated to prepare fraudulent "' will. The appellant reiterated that the will was not only executed, but the Court has accepted it. Beyond this, there is nothing in the cross-examination.

The respondent/defendant also examined himself and in his evidence also, in para 4, he reiterated that the will shown was forged. He was specifically asked in his cross-examination and he had to admit that he had filed no Revision against the order dated 9. 9. 1997, by which the Will was held proved, though he asserted that he was going ) to file the same. It was on this basis that the Trial Court held all the issues in favour of the appellant. 14. Before the first Appellate Court, again it was reiterated by the tenant-respondent (appellant therein) that the Trial Court had committed an error in holding the appellant/plaintiff to be the heir of the suit house. Some judgments were cited in support of this contention, they being Mahendra Dhapu & Ors. vs. Ram Avtar & Ors. [1923 AIR Nagpur 209], Kalyanmal Mills Ltd. , Indore vs. Voli Mohammad & Ors. [1965 AIR M. P. 72], Raghunath Singh vs. Ganga Basai [1961 M. P. L. J. 398], Surajmal & Ors. vs. Kishori Lal, [1976 AIR H. P. 74].

The Appellate Court distinguished all these decisions on the factual aspects and held that the Will (Exhibit P-1) was proved by the evidence of the appellant/plaintiff, as also the attesting witness. It was also pointed out that the Will was not disputed by ~ ~ anybody else, muchless even the interested persons. On the other hand, they had supported the Will. The Appellate Court came to the conclusion that in that view, the tenant could not be allowed to raise question on the legality of the title of the appellant herein. The Appellate Court thereafter considered the matter on merits regarding the bonafide need of the appellant and held it to be proved. The Appellate Court further went on to hold that since the tenant had challenged the title of the ---~ :,j landlord, i. e. , the appellant during the pendency of the eviction petition, the landlord became entitled under Section 12(1)(c) to get the decree of eviction. It is on this basis that the appeal came to be dismissed. I L 15.

The High Court, however, took the view that the Will .... , -~ had to be proved all over again, though it was held proved earlier in the enquiry under Order 22 Rule 5, CPC. We have already earlier referred to the findings of the High Court. In our \ view, the view of the High Court that the Will had to be proved again, is incorrect. \ . 16. As a legal position, itcannot be disputed thatnorrnally, an enquiry under Order 22 Rule 5, CPC is of a summary nature and findings therein cannot amount to res judicata, however, I. : that legal position is true only in respect of those parties, who set up a rival claim against the legatee. For example, here, there were two other persons, they being Ramesh and Arun Kate, who were joined in the Civil Revision as the legal representatives of Sukhiabai. The finding on the Will in the order dated 9. 9.

1997 passed by the Trial Court could not become final as against them or for that matter, anybody else, claiming rival title to the property, vis-a-vis, the appellant herein, and, therefore, to that extent, the observations of the High Court are correct. However, it could not be expected that when the question regarding the Will was gone into in a detailed enquiry, where the evidence was recorded not only of the appellant, but also of the attesting witness of the Will ~nd where these witnesses were ·thoroughly cross-examined and where the defendant also examined himself and tried to prove that the Will ( A was a false document and it was held that he had utterly failed in proving that the document was false, particularly because the document was fully proved by the appellant and his attesting witness, it would be futile to expect the witness to lead that evidence again in the main suit.

It was at the instance of the High Court in the revisional jurisdiction that the direction was given that the Trial Court should first decide as to whether who ,. rcould be the legal representative of Sukhiabai and after . ,, .. : complete enquiry, the Trial Court held the Will to be proved. The Will was not only attacked by the appellant on its proof, but also on merits, inasmuch as the respondent/defendant went on to contend before the Trial Court during that enquiry that the Will ,. was unnatural, unfair and was executed in doubtful ~ circumstances. The respondent/defendant had also relied on the reported decision of this Court in Girja Dutt Singh vs. Gangotri Datt Singh [AIR 1955 SC 346]. The Trial Court, however, rejected this contention. On the other hand, the Trial Court found on merits that the appellant was living with B . Sukhiabai and Sukhiabai had adopted him orally. 17. Evidence of Ramesh Kate was also referred to, who . ,1 asserted about this fact.

Reference was also made to the evidence of Sukihabai herself in the Rent Control Case No. 14/ 90-91 that she had adopted Dashrath Rao (appellant herein) and that Dashrath Rao lived with her. Clear cut findings were given by the High Court in these proceedings that from the evidence of Prabhakar Rao (PW-2), the attesting witness, it was clear that Sukhiabai had signed in his presence and he 0 had also signed in presence of Sukhiabai and had also seen the other attesting witness signing the Will and attesting the -· 't same. Not only this, but the Trial Court also wrote a finding that the objection raised by the defendant (respondent herein) that Sukhiabai was not in a position to understand the Will on account of her poor physical condition, was also rejected by the Trial Court. It was also noted that the Will was executed six years prior to her death and as such, there was no question of Sukhiabai being suffered with any mental or physical disability * for executing the Will.

Therefore, it is on this basis that the Will was held to be proved. Once this was the position and in the same suit, the further evidence was led, there was no point on the part of the appellant/plaintiff to repeat all this evidence all over again. We have closely seen the relied upon ruling of the j Himachal Pradesh High Court in Suraj Mani & Anr. vs. Kishori Lal (cited supra). The ruling undoubtedly correctly holds that the finding in an enquiry under Order 22 Rule 5 cannot operate as "' res judicata, provided the very question needs to be decided. The factual situation, however, differs substantially. The case before the Himachal Pradesh High Court only pertained to the correctness of the order passed in the enquiry under Order 22 Rule 5, CPC. That was not a case where the question, as in the present case, fell for consideration.

In fact, the Himachal Pradesh High Court also observed and, in our view, correctly, that itwas still open to the petitioner (therein) during the trial of the suit to establish that the Will was competent and confered no right, title or interest on the respondent and, therefore, the respondent was not entitled to any relief in the suit. Unfortunately, on evidence in this case, the respondent/ defendant did not do anything and did not even challenge the evidence of the appellant that he had become owner of the Will. Merely because the evidence of respondent/defendant and Prabhakar Rao (PW-2) was not repeated all over again, it cannot be held that the appellant/plaintiff could be non-suited on this ground. · 18. Dr. Kailash Chand, Learned Counsel, appearing for the respondent also relied on ruling in Vijayalakshmi Jayaram vs. M. R. Parasuram [AIR 1995 A. P. 351).

It is correctly held by the Andhra Pradesh High Court that the Order 22 Rule 5 is only for the purpose of bringing legal representatives on record for conducting of proceedings in which they are to be brought on record and it does not operate as res judicata. However, the High Court further correctly reiterated the legal position that the inter se dispute between the rival legal representatives has to be independently tried and decided ·in separate proceedings. Here, there was no question of any rivalry between the legal representatives or anybody claiming any rival title against the appellant/plaintiff. Therefore, there was no question of the appellant/plaintiff proving the Will all over again in the same suit. The other judgment relied upon is Full Bench Judgment of Punjab & Haryana High Court in Mohinder Kaur & Anr. vs. Piara Singh & Ors. [AIR 1931 Punjab & Haryana 130]. The same view was reiterated.

As we have already pointed out, there is no question of finding fault with the view y • expressed. However, in the peculiar f~cts and circumstances of this case, there will be no question of non-suiting the appellant/plaintiff, particularly because in the same suit, there would be no question of repeating the evidence, particularly . ~· when he had asserted that he had become owner on the basis of the Will (Exhibit P-1). In a case in Shaligram Bhagoo Kunbi & Anr. vs. Mt. Dhurpati Wlo Shamrao Kunbi [AIR 1939 Nagpur 147], the Division Bench of that Court consisting Hon'ble Stone C. J. and Hon'ble Vivian Bose, J. , considered the question. The Division Bench, firstly, quoted from Tarachand vs. Mt. Janki [AIR 1916 Nag. 89]. The quotation relied on was as follows:- . J "It is no longer open to the Court to stay the suit until the dispute as to who is the legal representative of a deceased plaintiff has been determined in a separate suit.

The question as to who was the representative of a deceased defendant could not be left open for decision in another suit, even under the old Code, but had to be decided by the Court itself. Under the present Code, all such questions have to be decided by the Court. " 't The Bench then proceeded to refer to Bombay High Court decision in Raoji Bhikaji vs. Anant Laxman [1918 (5) AIR Born 175] and Allahabad High Court decisions in Raj Bahadur vs. Narayan Prasad [1926 (13) AIR All. 439] and Antu Rai vs. Ram Kinkar Rai [1936 (23) AIR All. 412] and went on to record that order under Order 22 Rule 5 was not a res judicata. After referring to these rulings, the Bench held:- .. "But there is an important qualification to this. It is true the order is not res judicata, but for all that, the decision is final so far as the suit in which it is made is concerned, not on the ground of res judicata but because of Section 47.

No subsequent decision in a separate suit can be used to affect the rights of the parties so far as questions relating to the 'execution, discharge or satisfaction' of the decree ... y in connection with which the order was made is concerned. " The Bench further observed:- "Once a person is joined as a legal representative under Order 22 Rule 5, and once it is accepted that that is final so far as that litigation is concerned, then it follows to the decree, and, thereafter, all matters relating to the 'execution, discharge or satisfaction' of that decree must be decided under Section 47 and not in a separate suit. " (Emphasis supplied) Ultimately, the Bench came to the conclusion:- "All that, in our opinion, is not res judicata is the question whether or not the person joined as the legal representative really occupies that character. That question is not finally concluded by a decision under Order 22 Rule 5 except in so far as it concerns the suit in which the decision is made.

To that extent.. we overrule the judgment in Mt. Laxmi vs. Ganpat reported in 17 NLR 45. The 0 appeal is dismissed with costs. " · (Emphasis supplied) Therefore, it is clear that at least insofar as the suit in the present case is concerned, the question regarding the appellant's right to represent was closed. There could be a second suit, questioning his entitlement on the basis of Will, but admittedly, there is no such challenge by any~ody to his status. as a legatee of Sukhiabai. Insofar as the suit in the present case is concerned, the question was finally decided under Order 22 Rule 5, CPC and in the same suit, it could not be reagitated. Obviously, the impugned judgment is incorrect when it holds that the appellant/plaintiff had to lead fresh evidence all over again to prove his status on the basis of the Will, which was held to be proved in the enquiry under Order 22 Rule 5, CPC. 19.

All this is apart from the fact that the tenant in this case could not have challenged the Will at all. He was an utter outsider and had no interest in the property as owner. Indeed, from the pleadings and evidence, it is clear that tenant- A respondent has not even ventured to claim any rival interest against the appellant/plaintiff. 20. For all these reasons, we are unable to agree with the impugned judgment and we would choose to set asi~e-ihe B same and restore the two judgments of the Trial Court and . Appellate Court. The appellant/plaintiff, therefore, succeeds with costs of Rs. 25,000/-. B. B. B. Appeal allowed.