Dalip Singh) J. - (1.) BOTH these writ petitions have been filed against the order by which one Munna Lal @ Munna Khan has been ordered to be substituted, as the legal representative of deceased plaintiff Balkishan @ Kishan Gopal @ Balakdas.
(2.) KISHAN Gopal instituted two separate suits, from which these writ petitions arise, for restraining the respondent No.3, as mentioned in the prayer in the suit in respect of the wall of the temple and in respect of the land in which the former Mahant Shri Ratangiri was cremated and a tomb has been erected on the aforesaid site of the land, which Balakdas claimed to be his personal property. During the pendency of these two suits Balakdas plaintiff died and an application for substitution of his legal representatives was filed by the present petitioners-Damodar Lal Mukhiya, as son of the deceased plaintiff and Smt. Shanti Devi, as wife of the deceased plaintiff in both these writ petitions. A reply was filed by the defendant Sevanand Giri alleging therein that apart from the above the petitioners another son of deceased plaintiff namely Munna Lal @ Munna Khan is also there and he too should to be substituted and impleaded as the legal representative, along with the petitioners. On the aforesaid reply being filed the petitioners submitted a rejoinder raising interalia a plea that the said person Munna Lal is not the son of the deceased and is actually a Muslim by caste and his real name is Munna Khan and on account of the fact that he professed a religion different from the deceased and is Muslim by caste, therefore, he cannot be the legal representative of deceased Balakas, who professed Hindu religion and was Pujari of the temple of Shri Kripaleshwar and Shri Maha Prabhuji Learned trial Court by the impugned order and after having recorded the statement of Munna Lal @ Munna Khan accepted the plea of the defendant that Munna Lal @ Munna Khan also deserves to be impleaded, as the legal representative of deceased Balakdas, as he too was the son of the deceased Balakdas. The grievance, which has been raised in the present petitions is that the learned trial Court did not afford sufficient opportunity to the petitioners to produce the relevant material before the Court, which has been placed before this Court in the form of Annexures 7 to 10 in the Writ Petition No.3326/2006 and also the documents, as annexed with the rejoinder. It was contended that all these documents formed part of public records and, therefore, it took some time for the petitioners to obtain the same and the learned trial Court in a hurried manner passed the impugned order without affording full opportunity to the petitioners to produce this piece of evidence before the Court. It is contended that if the aforesaid piece of evidence is looked into, the fact would be established that Munna Lal @ Munna Khan, is Muslim by caste and not the son of deceased Balakdas and, hence, the question of his being substituted as the legal representative in the present suit, does not arise. Learned counsel appearing for the respondents submitted on the basis of the material produced before the learned Court below that it has clearly been established on record that Munna Lal @ Munna Khan is the son of Balakdas and, therefore, there was no error so far as the impugned order is concerned. In the present writ petitions, so far as the merits and demerits of the respective contentions are concerned as to whether Munna Lal @ Munna Khan is the legal representative of deceased Balakdas or not is not material, this Court has to only examine whether sufficient opportunity was granted to the present petitioners to rebut the contention of the defendant, as raised in their reply to the application under Order 22 Rule 3 C.P.C., submitted for the substitution of the present petitioners, as the legal representative of deceased Balakdas, the plaintiff. It is not in dispute that the application for substitution was filed after the death of Balakdas, who died on 04.04.2005, on 31.05.2005. The reply to the said application was submitted by the defendant on 22.08.2005, wherein the defendant took the objection that the deceased was also survived by another son Munna Lal @ Munna Khan. Immediately, thereafter on the next date i.e. on 23.08.2005 the petitioners filed the rejoinder. Though, it is contended by the learned counsel for the petitioners that the Court was in hurry to proceed and did not afford sufficient opportunity to the petitioners, even for filing the rejoinder, as the reply had been received only on 22.08.2005 where this objection was raised. It is then contended that the petitioners moved an application on 24.08.2005 for granting time to the petitioners to produce the material, which was relevant in the matter to show that Munna Lal was not the son of the deceased and he could not be impleaded or substituted, as the legal representative of deceased Balakdas. It is contended that no further opportunity was granted and also no order on the application was passed by the learned trial Court. The case was fixed for 12.09.2005 on which date the Court examined Munna Lal @ Munna Khan, who was produced before this Court from the Central Jail, where he is undergoing the sentence for the offence of murder having been committed by him. It is submitted that on 12.09.2005 itself, soon after the statement was recorded, the impugned order came to be passed by the learned trial Court.
(3.) THE submission of the learned counsel for the petitioners is that in the facts and circumstance of the case it cannot be said that reasonable opportunity and time was granted to the petitioners after 22.08.2005 when the reply was filed by the respondents to enable the petitioners to produce before the Court the relevant material and also that no enquiry, as envisaged under Order 22 Rule 5 of the C.P.C. was conducted by the learned trial Court. I have gone through the aforesaid material, which is available in S.B. Civil Writ Petition No.3326/2006. THE aforesaid facts are not in dispute. In the facts and circumstance of the present case the matter assumes importance, inasmuch as the matter is a sensitive one and may hurt religious feelings and the Court ought to have made a detailed inquiry in the matter and afforded reasonable opportunity to the parties to submit relevant material/evidence to substantiate their respective pleadings, as set-up in the application, reply and the rejoinder. The objection having been taken by the defendants only on 22.08.2005 in their reply, which was filed after three months of moving the application, reasonable time ought to have been allowed to the plaintiff-petitioner to rebut the contention and filed relevant documents/evidence and an enquiry should have been made in this behalf. In the facts and circumstance of the present case it cannot be said that reasonable opportunity was afforded to the petitioners for producing before the Court the relevant material to rebut the plea of the defendant with regard to the fact as to whether or not Munna Lal @ Munna Khan is legal representative of deceased Balakdas. The order passed, thus, suffers from a jurisdictional error, which has let to miscarriage of justice so as to warrant interference under Article 226/227 of the Constitution of India. In the facts and circumstance of the present case, I am inclined to accept both these writ petitions and remand the matter to the learned trial Court, which would afford reasonable opportunity to the parties to adduce evidence, both oral and/or documentary in support of their respective contentions as to whether or not Munna Lal @ Munna Khan is legal representative of the deceased Kishan Gopal @ Balak Das, deceased plaintiff and he deserves to be substituted as his legal representative. With the aforesaid observations, both the writ petitions stand disposed of. ;