MADAN, J. - (1.) THIS civil revision petition arises out of an order passed by the Additional District Judge, Kekri (Ajmer) in civil appeal No. 31/92 allowing application of Gopal Lal (Opposite Party No. 9/3), under Order 1 Rule 10 (2) CPC holding him as necessary party to the appeal as one of legal representatives of deceased Chandra Prakash, being adopted son.
(2.) ADMITTED facts, briefly stated are that Civil Suit No. 20/81 Suraj Devi vs. Ramdayal & Others instituted for eviction on the grounds of default and bonafide need was decreed by the trial court against the present petitioners (tenants/ defendants) by judgment and decree dated 7. 2. 81, against which an appeal was preferred by Ramdayal (tenant ). During the pendency of the appeal, one of the respondents (plaintiff) namely Chandra Prakash had died on 11. 9. 1986 and as such on the application of the appellants (present petitioners), his widow & daughter were brought as legal representatives of deceased (respondent) Chandra Prakash on record under the order dated 5. 3. 1990 of the appellate court. Thereafter Gopal Lal claiming himself to be adopted son, having been taken in adoption by Kamla Devi widow of Chandra Prakash on 22. 9. 86, had moved an application before the appellate court under Order 1 Rule 10 (2) CPC stating inter alia that despite being one of legal representatives of deceased, he was not brought on record earlier, therefore, he may also be impleaded as respondent in the appeal. This application was not opposed by Kamladevi and Durgesh Nandini other legal representatives of deceased Chandra Prakash, but was opposed by tenants (present petitioners/appellants ). This application was allowed by the appellate court and Gopal Lal was ordered to be arrayed as respondent No. 2 (3) by Order dated 2. 9. 200 against which this revision petition has been preferred by the tenants petitioners (appellants in Civil Appeal No. 31/92 ). Shri B. L. Mandhana learned counsel for the petitioners contended that when Kamladevi and Durgesh Nandini were allowed under Order 22 Rule 4 CPC for being brought on record as legal representatives of deceased Chandra Prakash, they never disclosed that Gopal Lal was also an adopted son, therefore, subsequent application at the instance of adopted son Gopal Lal is not only collusive based on concocted facts but also totally belated rather malafidely disguised in the form of application under Order 22 Rule 4 CPC inasmuch as it is far from bonafide besides calculated to show bonafide need for the suit shop. Lastly Shri Mandhana contended that there was no proof as to Gopal Lal having been validly adopted son of Chandra Prakash but no inquiry as stipulated under Order 22 Rule 5 CPC was made, thereby the impugned order suffers from jurisdictional error and so is illegal and if allowed to stand, would cause irreparable injury leading to injustice to the petitioners. Shri Mandhana placed reliance upon the decisions in Radha Krishna Mohapatra vs. Bhuyan Sri Shyam Sunder (1) and Ram Prakash vs. Shankari Contrarily Shir R. K. Agarwal learned counsel for the respondent cited decisions in Kamleshwar Prasad vs. Kailash (3); Kaluram vs. Charan Singh (4) and Suraj Mani vs. Kishori Lal Having heard the learned counsel for the parties and considered the rival contentions so also perused the impugned order besides other document produced during the course of hearing, prima facie I am of the opinion that the learned appellate court has not committed any error of law or jurisdiction in allowing Gopal Lal for being impleaded as necessary party to the appeal keeping in view the judgment dated 16. 2. 91 of the learned Munsif Kekri in another Civil Suit No. 232/85, whereby while deciding issue No. 8 the learned Munsif had held Gopal Lal as adopted son of Chandra Prakash. It is pertinent to mention here that aforesaid another Civil Suit was filed by the present plaintiff respondent against the present petitioners (tenant- defendants) inasmuch as Gopal Lal was also impleaded as legal representative of deceased Chandra Prakash whereafter Suit was amended and on the basis of pleadings in amended plaint and written statement, issue No. 8 was framed as to whether Gopal Lal was not adopted son of Chandra Prakash. But curiously enough, the Judgment, dated 16. 2. 91 in Civil Suit No. 232/85 holding Gopal Lal as adopted son of Chandra Prakash under issue No. 8 has never been challenged either in appeal or revision petition by any of the parties to that Suit who are also parties to present proceedings. In this view of the matter, I am of the considered view that no inquiry as contended by Shri Mandhana under Order 22 Rule 5 CPC was necessary so as to determine, as to whether Gopal Lal was legal representative of Chandra Prakash or not? Moreover, the learned appellate court during the pendency of the appeal was deciding the application of Gopal Lal under Order 1 Rule 10 CPC to determine as to whether Gopal Lal was to be impleaded/arrayed as necessary party to the appeal against the decree of eviction inasmuch as other legal representative of Chandra Prakash or other co-plaintiffs to the eviction suit or the substituted respondents have never objected or disputed to the adoption of Gopal Lal. Further, as observed above, despite the present petitioners (who were also defendants to other Suit No. 232/85) having objected to his adoption to which issue No. 8 therein was framed - onus to prove it was on the defendants (present petitioners) but they had failed to prove it thereby issue No. 8 was decided against the present petitioners and which conclusions have not been reversed by any higher court, obviously because none of parties assailed it, thus under Judgment dated 16. 2. 91, once Gopal Lal was found and held to have been adopted son of Chandra Prakash, in my considered view, the learned appellate court has rightly held Gopal Lal as necessary party to be arrayed/impleaded as respondent No. 2 (3) to the appeal of the present petitioners. Rather by virtue of Judgment dated 16. 2. 91 rendered their issue no. 8 having been not proved by them, it was incumbent upon the present petitioners to impleaded Gopal Lal being adopted son so as to save their appeal from being abated in the absence of all legal representative of deceased Chandra Prakash being brought on record.
(3.) IN Radha Krishna vs. Shyam Sunder (supra), Radha Krishna claiming himself adopted son of late Rai Bahadur B. B. Mohapatra whose first wife was Luximani (plaintiff in partition suit) against Shyam Sunder and others who were sons of late Rai Bahadur and step sons of the plaintiff), had applied for being substituted in place of Laximani (plaintiff) on her death, on the basis of a registered deed of adoption executed by her and his natural father. However his application was dismissed by the trial court and the suit itself was dismissed being abated on the application of the defendants (step sons of the plaintiff), even without considering as to whether petitioner was adopted by Luximani. Hence in these circumstances, the High Court of Orissa set aside the order of the trial court rejecting petitioner's application and dismissing the suit as abated and held that the trial court failed to exercise its jurisdiction vested in it by not enquiring into and determining under Order 22 Rule 5 CPC as to whether the petitioner was the legal representative of deceased plaintiff. Similarly in Ram Prakash vs. Shamkari (supra) in a suit for permanent injunction brought by Bhagatram and his brother Munshiram for restraining Roshanlal and others (defendants) from constructing some building on the disputed land, Bhagatram (plaintiff) died and therefore, Ram Prakash and Mehangaram (petitioners) moved under Order 22 Rule 3 CPC for being impleaded as sole legal representatives of the deceased on the basis of a registered will executed by Bhagatram (original plaintiff), but the trial court instead of determining as to who was the real legal representative of Bhagatram had directed to bring not only the applicants (Ram Prakash and Mehangaram) but also Smt. Shankari Bai on record with the stipulation that they have been impleaded as legal representatives of Bhagatram for that suit only. Hence in these circumstances, the Punjab and Haryana High Court set aside trial court's direction and remitted the matter to it to determine the question under Order 22 Rule 5 CPC as to who was the legal representative of plaintiff deceased. The High Court also held that the Court cannot absolve itself from the duty cast by the statute by resorting to the practice of impleading all the alleged legal representatives and leaving the matter to be decided in a separate suit and further that it would not be proper that after the suit is decided, the plaintiff, who may be one of the persons claiming to be the legal representative of the deceased, should not be able to reap the fruit of the decree, if ultimately in the separate suit, he or she is not held to be the real legal representative. Having considered and examined the decisions (supra), in my view, the ratio decendi thereof is not at all attracted being distinguished from the facts of case at hand and thereby ratio of decisions cited by Shri Mandhana do not render any help in advancing any case in favour of the present petitioners because in the present case, in the light of earlier judgment in other suit (supra) decided in the presence of the same parties who are also parties to the present suit and appeal, inquiry was not necessary under Order 22 Rule 5 CPC, especially when the issue decided under the impugned order was limited as to whether Gopal Lal was necessary party for being impleaded as respondent to the appeal of the present petitioners, who deliberately did not bring Gopal Lal on record as legal representatives of Chandra Prakash while his other legal representatives (widow and daughter) were brought on record on the death of deceased plaintiff Chandra Prakash. ;