Dilip Kumar Vs Mohd. Shakil Khan

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AFR

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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Reserved for orders on : 28.07.2025

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Order passed on : 03.09.2025

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CR No. 27 of 2023

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1 - Dilip Kumar S/o Late Tikamdas Hinduja Aged About 49 Years R/o Aashiyana Apartment, 104, New Shanti Nagar, Beside Dr. Patel House, Raipur, Tehsil And District Raipur (C.G.) (Plaintiff No. 2 To 6)

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2 - Kanhaiyya S/o Late Tikamdas Hinduja Aged About 42 Years R/o House No. 447, Next To Priyadarshani Colony Society Office, Tehsil And District - Raipur (C.G.)

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3 - Smt. Mamta Hinduja Wd/o Late Laxman Das Hinduja Aged About 54 Years R/o Ahead Of Meera Datar, Sector 1, Beside Dr. Deshpandey House, Gitanjali Nagar, Raipur, Tehsil And District - Raipur (C.G.)

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4 - Sanjay Kumar S/o Late Laxman Das Hinduja Aged About 30 Years R/o Ahead Of Meera Datar, Sector 1, Beside Dr. Deshpandey House, Gitanjali Nagar, Raipur, Tehsil And District - Raipur (C.G.)

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5 - Vikki S/o Late Laxman Das Hinduja Aged About 27 Years R/o Ahead Of Meera Datar, Sector 1, Beside Dr. Deshpandey House, Gitanjali Nagar, Raipur, Tehsil And District - Raipur (C.G.)

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... Applicant

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versus

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1 - Mohd. Shakil Khan S/o Mohd. Kamil Khan Aged About 45 Years R/o Hig 304, Dindayal Upadhyay Nagar, Raipur, Tehsil And District Raipur (C.G.) (Defendant No. 1-4)

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2 - Smt. Keshari Begum W/o Shri Mukhtar Ahmad Khan Aged About 56 Years R/o Quarter No. 222-A, B.M.Y. Charoda, Tehsil Patan, District - Durg (C.G.)

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3 - Gurdip Singh S/o Shri Keshar Singh R/o Charoda, Tehsil Patan, District - Durg (C.G.)

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4 - State Of Chhattisgarh Through District - Collector, Durg (C.G.)

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Digitally signed by SHAYNA KADRI

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	... Respondent(s)
For Applicant	: Mr. Manoj Paranjpe, Advocate
For State	: Ms. M. Asha, Panel Lawyer
For Resp. No. 1 and 2	: Mr. Khulesh Sahu, Advocate

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(Hon'ble Shri Amitendra Kishore Prasad, Judge)

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CAV Order

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The applicants have preferred the present revision petition under Section 115 of the Code of Civil Procedure, challenging the order dated 04.11.2022 passed by the learned 6th Additional District Judge, Durg (Chhattisgarh) in Civil Suit No. 65-A/2014, titled Kewalram & Others vs. Mohd. Shakil Khan & Others, whereby the trial Court held that the suit stood abated due to the death of plaintiff No. 1, Kewalram, on 24.12.2018, and on account of failure to take steps for substitution of his legal representatives despite directions issued vide order dated 19.11.2019.

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Facts of the case, as projected by the applicants, in a nutshell, are that t he plaintiffs filed Civil Suit No. 129-A/2014 before the competent Court seeking a declaration of title and permanent injunction in respect of a property situated in Patwari Halka No. 2, Tehsil Patan, District Durg (C.G.), comprising part of Khasra Nos. 463/2 and 463/3, admeasuring 10,400 square feet (0.097 hectare), and identified as Plot Nos. 13, 15, and 16. The suit property was originally purchased through a registered sale deed dated 20.12.1962 by Late Idandas and plaintiff No. 1, Kewalram, from one Krishna Kumar Silhat. Following the purchase, the property was mutated and Rin Pustika was issued in the name of Late Idandas and plaintiff No. 1 under Khasra No. 463/34. The plaintiffs' genealogical lineage traces back to Late Gohimal, who had four sons, namely Tolumal, Idandas, Dayaldas, and Tikamdas. Dayaldas was the father of plaintiff No. 1, Kewalram. Tikamdas had three sons, Dilip Kumar (plaintiff No. 2), Kanahaiyya (plaintiff No. 3), and Lakshmandas. Lakshmandas, now deceased, was the husband of plaintiff No. 4

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(Mamta Hinduja) and the father of plaintiffs No. 5 (Sanjay Kumar) and No. 6 (Vikki). It was alleged that to address discrepancies in the revenue records, particularly that the mutation only referred to Khasra No. 463/34 while the sale deed mentioned Khasra Nos. 463/2 and 463/3, late Lakshmandas handed over the original sale deed and Rin Pustika to defendant No. 3, who had close connections with revenue authorities. Subsequently, it was claimed that after the death of Idandas, who died issueless, defendants No. 1 and 3 fraudulently mutated the property solely in the name of Late Lakshmandas by misrepresenting him as the only legal heir of Idandas (as per Sanshodhan Panji No. 167 dated 17.04.1994). Further, a forged correction deed to the original sale deed was allegedly executed on 03.05.1994, and a forged power of attorney dated 29.11.1994 was created in favor of defendants No. 1 and 3. Using the purported forged power of attorney, defendants No. 1 and 3 executed a registered sale deed on 30.11.1994 in favor of defendant No. 2, who subsequently mutated the suit property in her name. When defendant No. 2 began construction on the property, the plaintiffs objected and initiated Revenue Case No. 62 B/121 for the year 2011–2012. The revenue authority directed the plaintiffs to seek redress from the competent civil Court, leading to the filing of the present civil suit. In the suit, the plaintiffs sought a declaration that they are the rightful owners in possession of the suit property. They also sought declarations that the power of attorney dated 29.11.1994 and the subsequent sale deed dated 30.11.1994 are illegal, forged, and void. The plaintiffs further requested that the mutation in the name of defendant No. 2 be declared invalid and that the defendants be restrained from disturbing

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the plaintiffs’ possession.

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Defendants No. 1 and 2 appeared and contested the suit by filing a written statement. They denied the allegations and asserted that plaintiff No. 1 was aware of all transactions. They claimed that defendant No. 2 had been in possession since 1994, and the suit was barred by limitation and filed only to harass. They also argued that proper Court fees had not been paid and prayed for dismissal of the suit. During the pendency of the suit, plaintiff No. 1, Kewalram, passed away on 24.12.2018. Plaintiffs No. 2 to 4 filed an application under Order 22 Rule 5 of the CPC, seeking substitution on the basis of a Will dated 19.10.2018, allegedly executed by the deceased plaintiff No. 1 in their favor. This application was opposed by all defendants. An inquiry was conducted by the trial Court under Order 22 Rule 5 CPC to determine the genuineness of the Will and the legal status of the applicants. The Court recorded the testimonies of several witnesses, Dilip Kumar Hinduja (PW-1), Ashok Nainwani (PW-2), Bharat Ramani (PW-3), Mohd. Shakil Khan (DW-1), and Gurdeep Singh (DW-3). However, despite the evidence, the learned trial court dismissed the suit as abated without properly appreciating the legal requirements under Order 22 Rule 5 of CPC. The Plaintiffs contend that the impugned order is legally flawed, arbitrary, and contrary to settled principles of law, and hence, liable to be set aside.

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Learne d counsel for the applicant subm its that the impugned order dated 04.11.2022 passed by the learned 6 th Additional District Judge, Durg, Chhattisgarh, in Civil Suit No. 65-A/2014 titled “Kewalram & Ors. Vs. Mohd. Shakil Khan & Ors.”, is wholly illegal, erroneous, and contrary to the settled principles of law. The trial Court, in dismissing

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the suit as abated, has not only acted in excess of its jurisdiction but has also misdirected itself by failing to adhere to the mandatory procedure laid down under Order 22 Rule 5 of the Code of Civil Procedure, 1908. The learned trial Court failed to properly appreciate the core principle that governs the determination of legal representatives under Order 22 Rule 5 CPC. The inquiry under this provision is limited to ascertaining who will represent the estate of the deceased party in the pending proceedings and not to decide the ultimate title or entitlement to the property. However, in the present case, the trial Court overlooked this fundamental legal distinction and dismissed the suit on grounds which were never within the scope of such an inquiry. It is submitted that the trial court has completely ignored and failed to apply the binding principles laid down by the Hon’ble Supreme Court in Jaladi Suguna (Deceased) through LRs. v. Satya Sai Central Trust & Ors. , reported in (2008) 8 SCC 521 , wherein it was held that until the Court determines who the legal representative is, the estate of the deceased remains unrepresented, and the decision on such a question must precede the hearing of the suit on merits. The impugned order also reveals that the trial Court did not consider or even engage with the evidence tendered by the applicants in support of their claim to represent the estate of the deceased plaintiff No. 1. The reasoning offered by the Court that “presentation of will in matter and examination thereby, is not needed” reflects a complete failure to exercise the jurisdiction vested in it under law. This reasoning is unsustainable in law and indicative of nonapplication of mind. The applicants had, in fact, produced a duly executed Will dated 19.10.2018, and the trial Court was duty-bound to

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examine the veracity of such Will, especially when an inquiry under Order 22 Rule 5 CPC had already commenced. Furthermore, the trial Court failed to appreciate that even if the Will was presumed to be unproven, the other plaintiffs, being Class I legal heirs and coparceners under the Hindu Succession Act, 1956, were still entitled to succeed to the estate of the deceased plaintiff No. 1. The coparcenary rights of the remaining plaintiffs have been completely ignored. Additionally, the trial Court did not take into account the settled legal position that where one or more legal representatives are already on record, the suit does not abate as a whole. This principle has been affirmed by the Hon’ble Madhya Pradesh High Court in Municipal Corporation, Dewas vs. Sagarmal & Ors. , reported in 2015 (2) MPLJ 274 . Shockingly, the trial Court passed the impugned order without providing even a single line of reasoning regarding the inquiry conducted under Order 22 Rule 5 CPC. The evidence of multiple witnesses, PW-1, PW-2, PW-3 and Dws, was recorded, but the Court failed to appreciate or analyze any of it. Such a casual and dismissive approach defeats the very purpose of a judicial inquiry. The impugned order is thus vitiated by non-application of mind and amounts to a miscarriage of justice. The trial Court further erred in stating that “in the absence of a cause of action, the suit must be dismissed,” and that “a new cause of action has arisen due to the Will.” These observations are not only legally incorrect but also outside the scope of the jurisdiction of Court in the present context. It is trite law that cause of action is not to be re-evaluated in an inquiry under Order 22 Rule 5 CPC, especially when the suit had already been admitted and was at an advanced stage. The finding of the Court that the plaintiffs must file a fresh suit based on the Will is directly contrary to

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Order 22 Rule 9(1) CPC, which clearly bars the institution of a fresh suit on the same cause of action once a suit has abated or been dismissed under Order 22.

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It is also relevant to point out that the impugned order is legally void to the extent that it purports to operate against the deceased plaintiff No. 1, even after his demise. It is a settled position in law that any order passed against a deceased party, who is no longer on record and properly represented, is a nullity in the eyes of law. The learned trial Court has confused the legal concepts of “legal heir” and “legal representative,” thereby misdirecting itself into rejecting the substitution application and dismissing the suit as abated. The law laid down in Satyanand v. Shyam Lal Chauhan , reported in (2018) 18 SCC 485 is also squarely applicable here, where the Hon’ble Supreme Court observed that procedural laws are designed to advance justice and cannot be ignored or diluted by Courts. In the present case, the trial Court has done precisely that, sidestepping mandatory procedure, failing to discharge its obligation to determine legal representation, and unjustifiably denying the applicants the right to continue the suit. Lastly, the trial Court failed to appreciate that abatement is merely procedural in nature and not a bar to substantive rights. Even assuming, though not admitting, that the substitution application was defective or insufficiently proved, the proper course would have been to allow rectification or seek further clarification rather than outrightly dismissing the suit. In light of the above submissions, it is submitted that the impugned order deserves to be set aside as it suffers from grave legal infirmities, arbitrariness, and jurisdictional error.

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At the outset, it is submitted by learned State Counsel that it has no

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personal interest in the outcome of the present civil proceedings but is a necessary party owing to its role in maintaining and updating land and revenue records. The State takes no position on the inter se title dispute between the private parties. However, it is submitted that all entries in the revenue records are subject to the determination of title by the competent civil Court. It is further submitted that the mutation entries made in favor of defendant No. 2 and others were carried out based on the documents presented at the relevant time, and there was no suppression of any material fact from the revenue authorities as far as the State is aware. The State does not admit any alleged fraud unless proved by cogent evidence by the plaintiffs. With regard to the impugned order passed by the learned trial Court, the State defers to the wisdom of the Court to adjudicate on the procedural correctness and legality of the same under Order 22 Rule 5 CPC. The State shall abide by any directions or orders passed by this Court.

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Learned counsel for the respondents No. 1 and 2 would submit that the instant civil revision petition is legally untenable, devoid of merit, and deserves to be dismissed in limine, as the relief sought by the applicants lies outside the scope and jurisdiction of this Court in its revisional powers. The applicants have prayed that the impugned order dated 04.11.2022, passed in Civil Suit No. 65-A/2014, be set aside and that plaintiffs No. 2 to 4 be allowed to represent the estate of the deceased plaintiff No. 1 (Kewalram). However, this Court, while exercising revisional jurisdiction under Section 115 of the Code of Civil Procedure (CPC), cannot conclusively determine the question of legal representation or substitute legal heirs without proper inquiry or evidence, which is within the exclusive domain of the trial Court under

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Order 22 Rule 5 CPC. It is crucial to bring to the attention of this Court that the learned trial Court, in its reasoned order dated 19.11.2019, had already directed the present applicants to implead the natural legal heirs of the deceased plaintiff No. 1, Kewalram, even after they had filed an application under Order 22 Rule 3 CPC dated 20.03.2019, claiming the right to continue the suit solely on the basis of a purported Will. Despite having received clear and unequivocal direction from the trial Court, the applicants not only failed to comply with that judicial order but also did not challenge it through appropriate legal remedies such as revision or appeal. That order, therefore, attained finality and is binding on the applicants. Their present attempt to ignore or bypass that binding directive is nothing but a gross abuse of process and an attempt to revive a suit that is rightly abated by operation of law. The learned trial Court was fully justified in holding that the Will dated 19.10.2018, presented by the applicants, could not form a conclusive basis for substitution of legal representatives under Order 22 Rule 3 CPC, since the suit property is not even mentioned in the Will. It is significant that the suit property in question is Khasra No. 463/34, situated in Village Charoda, Tehsil Bhilai-3, District Durg, Chhattisgarh. In contrast, the Will speaks of Khasra No. 463/2 located in Tehsil Patan. The mismatch of Khasra numbers and Tehsils reveals a material and fatal defect in the applicants' claim. It is settled law that no one can bequeath property that does not belong to them. Therefore, the Will, even if assumed to be genuine, is legally irrelevant to the subject matter of the suit and cannot vest any right or authority in the applicants to prosecute the suit. The trial Court rightly observed that the estate of the deceased plaintiff No. 1 could not be represented

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merely on the basis of a facially defective Will that lacks clarity on ownership, location, or relation to the suit property. Instead, the Court appropriately directed that the natural legal heirs of the deceased must be impleaded to conduct a fair and complete inquiry into the question of representation, in accordance with the mandatory provisions of Order 22 Rule 5 CPC. This decision by the learned trial Court not only upholds procedural fairness but also ensures that any adjudication on representation is not based on speculative or unverified claims. Moreover, the trial Court gave the applicants ample opportunities over nearly three years and more than 40 hearings to comply with the directions issued. Yet, they repeatedly failed to bring on record the natural legal heirs of Kewalram or cooperate with the inquiry process. Their persistent non-compliance, despite repeated indulgence by the Court, demonstrates a clear intention to obstruct the proceedings and frustrate the due process of law. The applicants, now, cannot be permitted to claim that the Court failed to conduct an inquiry, when it was their own non-cooperation that rendered the inquiry inconclusive.

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It is further submitted that during the cross-examination of applicant No. 1, Dilip Hinduja, he candidly admitted that whitener had been used in the Will where the Khasra number was mentioned, raising serious questions about the genuineness and authenticity of the document. He also admitted that no title document supporting the ownership of Khasra No. 463/2 was attached with the Will. These admissions, along with the absence of corroboration from the attesting witnesses regarding the suit property, severely undermine the applicants’ claim of lawful succession under the Will. Furthermore, the revenue records exhibited as Ex. D1 to D8 conclusively show that the land claimed

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under the Will, i.e., Khasra No. 463/2 and Khasra Nos. 1009 and 1010 (village Dhansuli), do not belong to Kewalram, but to third parties such as Gajanand Ganpati and M/s. Barbarik Pvt. Ltd. This fact remained unchallenged in cross-examination and must be treated as admitted and final. In light of these facts, the trial Court was fully justified in concluding that the applicants cannot be treated as legal representatives merely on the strength of a suspicious and facially irrelevant Will. The Court was equally justified in abating the suit after repeated opportunities to comply with procedural requirements were willfully disregarded. The applicants, having failed to comply with a binding judicial direction, now approach this Court with unclean hands, seeking a relief that would effectively nullify the due process followed by the trial Court. Furthermore, the reliance placed by the learned counsel for the applicant on Jaladi Suguna (Supra) is wholly misplaced. Judgment pertains to the obligation of Courts to determine representation through an inquiry where there is dispute. In the present case, the Court did initiate such an inquiry, directed impleadment of natural heirs, and only upon the applicants' failure to comply, rightly abated the suit. The applicants are attempting to misuse the authority of this Court to circumvent lawful orders and to substitute themselves in place of the deceased without proving either their entitlement or ownership of the property mentioned in the Will. The Applicants have not demonstrated any jurisdictional error, procedural irregularity, or perversity in the order of the trial Court, which are the only permissible grounds for interference under Section 115 CPC. Instead, the revision petition is a veiled attempt to seek substitution in the guise of revision, which is legally impermissible and amounts to overreaching the

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jurisdiction of trial Court and undermining its authority. In view of the foregoing submissions and in the interest of justice, it is most prayed that this Court may be pleased to dismiss the present civil revision holding that the learned trial Court acted in full accordance with law and procedural fairness, and that no interference is warranted under revisional jurisdiction.

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I have heard learned counsel for the parties and have also perused the documents enclosed along with the revision.

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The principal issue for consideration before this Court is whether the trial Court committed an error of jurisdiction and law in declaring the suit abated, despite the pendency and conduct of proceedings under Order 22 Rule 5 CPC, wherein the applicants sought substitution on the basis of a Will dated 19.10.2018 allegedly executed by the deceased Kewalram in their favour. For the sake of brevity O rder 22 Rule 5 of the CPC is quoted her eunder :

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“ 5. Determination of question as to legal representative - Where a question arises as to whether any person is or is not the legal representative of a deceased plaintiff or a deceased defendant, such question shall be determined by the Court:

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Provided that where such question arises before an Appellate Court, that Court may, before determining the question, direct any subordinate Court to try the question and to return the records together with evidence, if any recorded at such trial, its findings and reasons therefor,and the Appellate Court may take the same into consideration in determining the question."

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A bare perusal of Order 22 Rule 5 CPC makes it abundantly clear that

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when a question arises regarding who is the legal representative of a

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deceased party, the same must be determined by the Court through a summary inquiry. This is to ensure that the estate of the deceased does not go unrepresented during the continuation of the suit.

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Hon’ble Supreme Court in the matter of Nawal Kishore Patel vs.

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Indrapati Devi , reported in (2003) 9 SCC 220 has held as under :

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“3. Order 22 Rule 5 CPC provides the procedure for determination of the question as to who is or is not the legal representative of a deceased plaintiff or defendant. Legal representative as defined in Section 2(11) CPC means a person who 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. It is thus clear that the scope of proceeding under Order 22 Rule 5 is limited to the question of finding as to who represents the estate of a deceased plaintiff or defendant. Obviously, the question unless put to issue as to who was the heir to the estate of the deceased cannot be enlarged. Similarly, in proceeding under Order 22 Rule 10 when a person claims himself to be an assignee or one on whom any interest during the pendency of a suit has been created or devolved seeks leave of the court to become party and look after his interests therein. Here as well no question of title is settled. In this light of the matter we are of the considered view, having heard learned counsel for the parties, that no res judicata was involved just because at an earlier stage in the appeal sufficient evidence had been introduced to establish that Veena Devi was the widow of the deceased Pramod Kumar. That finding arose out of a question posed about representation and not decided by regular issue and did not finally determine her heirship to the estate

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of the deceased.”

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In the matter of Jaladi Suguna (Supra), reported in (2008) 8 SCC 521 , the Hon’ble Supreme Court has held that the inquiry under Order 22 Rule 5 CPC is a limited and summary one, confined to the question of who shall represent the estate of the deceased party, without deciding upon the validity or enforceability of the Will itself. Relevant paragraphs are quoted hereunder :

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“15. Filing an application to bring the legal representatives on record, does not amount to bringing the legal representatives on record. When an LR application is filed, the court should consider it and decide whether the persons named therein as the legal representatives, should be brought on record to represent the estate of the deceased. Until such decision by the court, the persons claiming to be the legal representatives have no right to represent the estate of the deceased, nor prosecute or defend the case. If there is a dispute as to who is the legal representative, a decision should be rendered on such dispute. Only when the question of legal representative is determined by the court and such legal representative is brought on record, can it be said that the estate of the deceased is represented. The determination as to who is the legal representative under Order 22 Rule 5 will of course be for the limited purpose of representation of the estate of the deceased, for adjudication of that case. Such determination for such limited purpose will not confer on the person held to be the legal representative, any right to the property which is the subject-matter of the suit, vis-à-vis other rival claimants to the estate of the deceased.

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20. Having regard to the facts and circumstances, we request the High Court to dispose of the appeal, preferably within

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a period of six months. Nothing stated above shall be construed as expression of any opinion on the merits of the matter. We also make it clear that the determination as to representation of the estate of the deceased, by the High Court, will be only for the purposes of the appeal before the High Court and will not in any way affect the rights of the claimants to the estate of the deceased or the adjudication of any dispute among them in any independent proceedings. Parties to bear their respective costs.”

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Hon’ble Supreme Court in the matter of Satyanand (Supra) , reported

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in (2018) 18 SCC 485 has held as under :

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“12. Although we are apprised of the fact that alleged legal representatives relying on certain customs to prove whether a grihastya could be a guru under the relevant sampradaya. We need not concern ourselves with the aforesaid findings on merit given by the trial court at this stage. It is for the High Court to consider the aforesaid report of the trial court and determine the disputed question of fact. It may not be out of context to note that the determination under Order 22 Rule 5 CPC is summary in nature and for limited purpose. Order passed on the impleadment applications, determining a particular person as legal representative has no effect of final decision or operates as res judicata between the legal representatives as to the question of who should ascend as guru. At the cost of repetition, we may note that the determination by the High Court would be limited to the question, as to who should be brought on record in the place of the deceased for the purposes of continuing the suit alone, and nothing beyond that.”

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The Hon’ble Supreme Court clearly laid down that a detailed adjudication on the genuineness or due execution of the Will is not

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required at this stage. The trial Court is not to decide whether the parties in whose favour the Will is executed ultimately have title or not. The only consideration is whether the Will exists and whether the claimants under it may be permitted to represent the estate of the deceased for the purposes of prosecuting or defending the suit.

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In the present case, the applicants had moved an application under Order 22 Rule 5 CPC for substitution on the basis of a Will. The trial Court conducted an inquiry and recorded evidence from both sides, including the attesting witnesses to the Will. Despite this, the trial Court did not arrive at any conclusive finding on the limited question of representation and instead proceeded to hold that the Will was suspicious and defective, and therefore the applicants could not be substituted. This approach of the trial Court is legally erroneous and contrary to the binding authority of the Supreme Court.

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It is well settled that at the stage of substitution under Order 22 Rule 5 CPC, the Court is not required to decide upon the rights, title, or validity of the Will. The only question is whether such a Will exists and whether the persons claiming under it can be allowed to continue the suit. The trial Court has clearly misdirected itself by examining the Will on merits, including discrepancies in Khasra numbers, the use of whitener, and ownership details, all of which are irrelevant to the inquiry under Order 22 Rule 5 CPC. Such matters can only be adjudicated in the final trial on merits and not at the interlocutory stage of substitution.

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It is also pertinent to note that even assuming the Will was ultimately found unenforceable, the remaining plaintiffs on record are the Class I heirs of the deceased Kewalram and would, in any case, be entitled to represent his estate. Thus, no ground existed for abatement of the

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entire suit. The proposition that the suit does not abate where some legal representatives are already on record is well supported by judicial pronouncements. The trial Court further erred in not assigning any reasoned finding despite recording evidence under Order 22 Rule 5 CPC. The order under challenge is wholly silent on the appreciation of that evidence and suffers from non-application of mind. This amounts to a jurisdictional error and calls for interference under Section 115 CPC. The trial Court also failed to consider that abatement of a suit is procedural and not a bar to substantive justice. The harsh consequence of dismissal ought to be a matter of last resort and not an automatic result, especially where an application for substitution is pending.

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The argument that the applicants failed to implead the “natural legal heirs” is also devoid of merit. Once a Will is pleaded and placed before the Court, the requirement under Order 22 Rule 3 or 5 is satisfied, and it is for the Court to decide the matter after due inquiry. The failure to implead others does not automatically lead to abatement, particularly when substitution is sought under a Will. The suggestion by the respondents that the applicants had the opportunity to comply but chose not to is not tenable. The record reflects that the applicants pursued their substitution application diligently and led evidence to support their claim. The mere existence of conflicting directions does not justify the failure of trial Court to conclude the inquiry on the basis of law.

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In view of the foregoing discussions, this Court is of the considered opinion that the trial Court committed a grave error of law by dismissing the suit as abated despite a pending and partially conducted inquiry

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under Order 22 Rule 5 CPC. The trial Court misapplied the law by evaluating the merits and execution of the Will, which is beyond the scope of inquiry at this stage. The applicants, having claimed substitution on the basis of a Will and being Class I heirs, were entitled to be impleaded at least to the extent of representing the estate of the deceased for the continuation of the suit.

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Accordingly, the Civil Revision is allowed . The impugned order dated 04.11.2022 passed by the learned 6 th Additional District Judge, Durg in Civil Suit No. 65-A/2014 is hereby set aside.

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The order of abatement of the suit is quashed, and the suit stands restored to its original number. The applicants are directed to be substituted in place of the deceased plaintiff No. 1, Kewalram, for the limited purpose of prosecuting the suit. The trial Court is directed to proceed with the suit on merits, in accordance with law and without being influenced by any observations made herein relating to the merits of the Will or title to the property.

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Sd/-

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( Amitendra Kishore Prasad ) JUDGE

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Shayna

Dilip Kumar v. Mohd. Shakil Khan

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Dilip Kumar v. Mohd. Shakil Khan

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