- (1.) D. K. Seth, J. The order dated 23-8-1999 passed by the learned Additional Dis trict Judge, IIIrd Court, Allahabad in Civil Revision No. 1660 of 1998, reversing the order dated 23-11-1998 passed by" the learned Civil Judge, Junior Division, Vth Court, Allahabad in Original Suit No. 1257 of 1992, has since been challenged by Shri Mool Behari Saxena, learned counsel for the petitioner on the ground that the substitution in the present ease is governed by Order XXII, Rule 4 (A) of the Code of Civil Procedure, and as such the order passed by the learned trial Court was justified. The revisional Court had wrong ly reversed the said order. He also eon-tends that whenever such question comes, the Court is to decide the same in view of Order XXII, Rule 5 of the Code. He fur ther contends that the revision against the order is not maintainable since even if the order is erroneous unless it is shown there is a jurisdiction error. According to him the trial Court had jurisdiction to decide the question one or other way. Since there was no want of jurisdiction or erroneous exercise of jurisdiction, even if the order is illegal or erroneous, the revision may not he maintainable. As such the order of the revisional Court is liable to be set aside.
(2.) LEARNED counsel for opposite party Shri R. N. Upadhyaya contends that since the legal representative has sought to be substituted under Order XXII, Rule 3, Order XXII, Rule 4 (A)prima- facie is not applicable. The question that has been raised by Mr. Saxena according to him is a question which can be determined only on evidence after issues are framed and the matters are decided at the time of hearing of the suit or otherwise. The question whether an administrator or receiver should be appointed in view of Order XXII Rule 4 (A) the same is still open to be decided even after a person is substituted under Order XXII Rule 3 of the Code. But such question is to be decided on the merits of the case having regard to the material that might be produced by the respective parties. According to him the question of substitution is determined on affidavit and no scope of allowing evidence of inter se parties who should become the Mahant, cannot be decided. He further contends that even if any decision is ar rived at in a proceeding under Order XXII, the same is not final determination of the rights. It is only to enable the process of the case to be proceeded with by one or the other way. The rights or interests of the parties can be decided only upon material evidence that might be produced by the parties or of framing issues oral the time of hearing of the case as the case may be. He, therefore, supports the order passed by the learned Additional District Judge in civil revision. He further contends that if there is any illegal or irregular exercise of juris diction even then a revision is main tainable. In the present case according to him the learned trial Court had deter mined the issues between the parties final ly without evidence and as such it had adjudged the issue while deciding the ap plication under Order XXII, Rule 3 and thus it acted illegally and with material irregularity in exercise of jurisdiction vested in him. Therefore, the revision is very much maintainable. I have heard learned counsel for the parties at length. In a case when there is no legal representative, Order XXII, Rule 4 (A) is applicable. If it is a case that succession is asked for in the office of Mahant in that event it would be governed under Order XXII, Rule 10 but in case it is contended that the office is filled up by nomination of the erstwhile Mahant and it is contended that such nomination has already been made or it is contended that the appoint ment has already been made during the life time of the deceased in such case the same may be governed under Order XXII, Rule 3. But then the substitution is only a tech nical matter by which the process of Court continues. Whatever decision is arrived at in the process of substitution same is sub ject to the final determination on the basis of material on record. Even if the substitution of a legal representative is allowed, it is open to the opposite party either to raise the question that he is not the legal repre sentative and despite having been sub stituted, he had no right to continue as Mahant, or he has no right to claim as a plaintiff or that administrator should be appointed. This question can be gone into on the basis of the material produced by the parties after deciding the respective contentions on the basis of the material placed before the Court. The substitutions so allowed will neither operates as resjudicata nor it precludes the parties from raising the issue for determination by the Court. If such issues are raised it is incum bent upon the Court below to determine the issue in accordance with law. No title or right is conferred on a person sub stituted on the basis of the substitution application, except right to represent the lis or estate.
(3.) THEN again Order XXII, of the Code requires substitution of the legal representative. Legal representative as defined in Section 2 sub-section (ii) of the Code "includes any person who intermed dles with the estate of the deceased. . . " apart from the legal heirs of a person rep resenting in law the deceased, a person intermeddling with the estate of the deceased, even representing the estate without law is also a legal representative for the purpose of Order XXII of the Code. Section 4 sub- section (24-A) of the U. P. General Clauses Act, 1897 has adopted the definition of legal representative as that of Section 2 (11) of the Code. In present case the opposite party had made out a prima facie case to the extent he could stake his claim as successor to the office at least purport to represent the estate. Even if it cannot be presumed to show then also he could definitely be said to be intermeddling with the estate. As such intermeddler he could well be con sidered as a legal representative in view of the definition of Section 2 (11) of the Code and Section 4 (24-A) of the U. P. General Clauses Act, 1897.;