Amitav Kumar Gupta, J. - (1.) The present interlocutory application has been filed on behalf of the appellants under Order XXII, Rules 3 & 9 read with Sec. 151 of the Code of Civil Procedure, 1908. Mr. Ayush Aditya, learned counsel, for the petitioners, has submitted that during pendency of the present appeal, appellant Bhagwati Devi, widow of late Bhagwati Prasad Jalan, died on 16.3.2015, leaving behind her sons and daughters, her legal heirs and successors as mentioned in para -7 of the supporting affidavit. It is submitted that legal heirs namely sons were brought on record by order dated 16.10.2014 and the prayer for substitution of legal heirs and successors namely at Sl. Nos. 5 to 8 of para -3 were rejected by order dated 16.10.2014. Learned counsel has contended that it would be evident from the order dated 16.10.2014 that the prayer of substitution of the daughters of original appellant late Bhagwati Prasad Jalan was rejected on the ground that they are not legally entitled to be substituted against the death of their father in view of the provisions of Sec. 2(h) of the Jharkhand Buildings (Lease, Rent & Eviction) Control Act, 2000. It is argued by the learned counsel that the present application has been filed under Order XXII, Rule 3 of the Code of Civil Procedure and words used in Rule 3 is.......the Court, on an application made in that behalf, shall cause the legal representative of the deceased plaintiff to be made a party and shall proceed with the suit. It is submitted that the daughters are legal heirs/legal representatives of the deceased appellant, Bhagwati Devi and the right to sue still survives with them in terms of Order XXII, Rule 3. It is submitted that the petitioners shall suffer irreparable loss and injury if they are not substituted in place of their mother. On the above grounds, it is contended that the order dated 16.10.2014 does not create a bar in substituting them as the legal representatives of their late mother, i.e., deceased, appellant Bhagwati Devi, the mother.
(2.) Per contra, Mr. Amar Kumar Sinha, learned counsel, for the respondent, has argued that the appellants at Sl. No. 5 to 8 of the present interlocutory application are the married daughters and in terms of Sec. 2(h) of the Jharkhand Buildings (Lease, Rent & Eviction) Control Act, 2000 they are not the legal heirs/legal representatives. That similar prayer was rejected by order dated 16.10.2014 and the present application has been filed only with an intent to delay the hearing of the appeal. It is submitted that the application is also barred by the principle of Res Judicata and is fit to be rejected as not maintainable.
(3.) Heard. Sec. 2(11) of the Code of Civil Procedure reads as under: - - "2(11) "legal representative" means a person who is in law represents the estate of a deceased person, and includes any person who intermeddles with the estate of the deceased and where a party sues or is sued in a representative character the person on whom the estate devolves on the death of the party so suing or sued." Section 2(h) of the Jharkhand Buildings (Lease, Rent & Eviction) Control Act, 2000 reads as under: - - "2(h) "Tenant" means any person by whom, or on whose account rent is payable for a building and includes - - (i) a person continuing in possession after the termination of the tenancy in his favour; and (ii) a person who occupies a building as an employee of the landlord of such building either on payment of rent or otherwise. (iii) In the event of death of the person continuing in possession after the termination of his tenancy subject to the order of succession and condition specified, respectively in Explanations I and II to this clause, such of the aforesaid person's - - (a) spouse; (b) son or unmarried daughter or where there are both, both of them; (c) parents; (d) daughter -in -law, being the widow of a pre -deceased son, as had been ordinarily residing in the premises with such person as a member or members of his family up to the date of his death, but does not include any person against whom an order or decree for eviction has been made." Thus it is evident from the language and definition in Sec. 2(h) of the Jharkhand Buildings (Lease, Rent & Eviction) Control Act, 2000 that the married daughters have been excluded from the purview of legal heirs or representatives. Moreover, by order dated 16.10.2014, the prayer of the petitioners was rejected for substitution as legal representatives. The said order has not been challenged and allowing the present application would in a way indirectly amount to passing an order as if sitting in appeal against the order dated 16.10.2014. The law is settled that the doctrine of res judicata applies at each stage of the proceeding and the present application is barred by the doctrine of res judicata. Such repeated filing of petition for the same prayer is highly deprecated and if such applications are filed in future no leniency shall be shown by this Court. Accordingly, I.A. No. 4015 of 2015 stands dismissed, since the married daughters are not legally entitled to be substituted in terms of the provision of Sec. 2(h) of the Jharkhand Buildings (Lease, Rent & Eviction) Control Act, 2000 and are not the legal representatives in terms of Order 22 Rule 3. The argument is responded to accordingly. S.A. No. No. 90 of 2013 On prayer of the parties, put up on 11.3.2016.;