Allowed

Sayaji Genuji Thete and Ors. v. Prasad Laxman Garkal and Anr.

Bombay HC12 Dec 2005WP/3657/2004

Case brief

AI extract

What is this about?

High Court Bombay allowed writ petitions challenging the rejection of impleadment applications. The court held that legal heirs of a deceased landlord-plaintiff must be brought on record as legal representatives under CPC Order 22 Rule 1, despite pending succession disputes or potential future challenges.

What did the court decide?

Impugned orders dated 21st February 2004 quashed; application under Order 22 Rule 1 CPC allowed.

Sayaji Genuji Thete and Ors. Vs Prasad Laxman Garkal and… — Property and Title | Bombay HC (2005)

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 IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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 APPELLATE SIDE

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 WRIT PETITIOIN NOS. 3657, OF 2004
 WITH
 WRIT PETITION NO. 3718 OF 2004
 WITH
 WRIT PETITION NO. 3672 OD 2004

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 --------------------------------------------------------
 Office Notes, Office Court’s or Judge’s orders
 Memoranda of Coram,
 appearances, Court’s
 orders or directions
 and Registrar’s orders

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 --------------------------------------------------------
 Mr. V.K. Pradhan for the petitioners.
 Mr. S.V. Palsuledesai for respondent
 NO.1.
 Mr. R.G. Gite for respondent No.2.

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 CORAM : ANOOP V. MOHTA, J.

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DATE : 12.12.2005

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 . The petitioners by the present
 writ petition have challenged the order
 dated 21st February, 2004, in Reg.Civil
 Suit No. 567 of 2000 filed by the
 original plaintiff against the tenants
 for eviction on the ground of arrears of
 rent.

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 2. The petitioner’s application

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 under Order 22 Rule 1 of Civil Procedure
 Code for impleading them as legal heirs
 of the deceased plaintiff, by the
 impugned order was rejected. The learned
 Counsel appearing for the petitioners,
 basically contended that at this stage,
 it is necessary to join them as a legal
 heirs of the plaintiff-landlord without
 going into the controversy revolving
 around the Will in question. The
 Executor of the Will has been added as a
 party by order dated 8/10/2003, as a
 plaintiff. There is no need to join
 these heirs of the original plaintiff on
 record in the suit in question.

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 3. Heard. The Civil procedure Code
 prescribed the definition oflegal
 representative, which is prescribed as
 under;

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 "Legal representative: means a person
 who in law represents the estate of a
 deceased person, and includes any person
 who intermeddles with the estate of the

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 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;

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 There is no prima-facie no opposition

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 pointed out on the record that they are

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 not the legal representatives of the

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 plaintiff. The controversy at this stage

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 revolve around the execution of the will
 of the plaintiff dated 1st December, 1999

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 subject to finality of the Will, and or
 the controversy revolving around it. At

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 this stage even, if there are some

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 dispute between heirs of the original
 plaintiffs or there are rival claims

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 based on the Will of the deceased

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 plaintiff, in my view, there is no reason

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 in the suit of landlord and tenant that

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 these heirs of the plaintiff could not be

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 impleaded as plaintiffs and or parties.
 Considering the contention as raised by

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 the parties and even the reasoning given
 by the Court, I am of the view that the
 legal heirs of the plaintiff-landlord
 should be brought on the record in such

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 proceedings.

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 4. This view has support from (S.
 Charanjit Singh and another V.
 Bharatinder Singh and others) (AIR 1988
 Punjab & Haryana 123) whereby, the Court
 after considering the order 22 Rule 5 of
 Civil Procedure code and based on AIR
 1981 Punjab and Hariyana 130 full bench
 granted such application.

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 5. The learned Judge therefore, was
 wrong while rejecting these applications
 on the ground that the
 applicants/petitioenrs might challenge
 the decree, or they could file separate
 suit to establish their rights as legal
 heirs in respect of the property of the
 deceased plaintiff. The learned Judge
 was wrong in observing further that no
 rights of the plaintiffs would be
 affected, if they are not impleaded as
 plaintiff in this suit. The petitioners
 as noted above are claiming their right

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 of the property in question based on the

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 natural succession.

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 6. The learned Counsel for the
 petitioner further contended that they
 are the only legal representatives of the
 plaintiffs. The definition of legal
 representative as reproduced above
 definitely covers the case of the
 petitioners and basically at this stage
 in the proceeding of landlord and the
 tenants. ( Kindu Sundari Devi V.
 Narendra Nath Mukherjee) (AIR 1929
 Calcutta 27), the legal representative,
 if ready and willing to be brought on the
 record, and unless there are serious
 objections there is no reason that such
 representatives should not be impleaded
 as a party. In the present case only
 legal heirs, even though disputed by the
 otherside, if have moved the application
 for impleading their names as plaintiffs
 after the death of landlord-plaintiff,
 there is no reason that such application

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 should not be considered in the

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 proceeding and basically at this stage of
 the proceeding.

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 7. In view of this, the present writ
 petitions are allowed. The impugned
 orders dated 21st February,. 2004 are
 quashed and set aside. Their application
 under Order 22 Rule 1 of C.P.C. is

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 allowed. There shall be no cost. The

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 writ petitions are allowed in terms of
 prayer clause (i) and (ii).

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 (ANOOP V.MOHTA,J.]

Sayaji Genuji Thete and Ors. v. Prasad Laxman Garkal and Anr.

Case brief

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Sayaji Genuji Thete and Ors. v. Prasad Laxman Garkal and Anr.

Case brief

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