Case Note & Summary
The petitioner, original defendant No.1 in Regular Civil Suit No.362/1999, challenged the trial court's order allowing the respondents to be brought on record as legal representatives of the deceased plaintiff Tarabai Shankar Chavan. The suit was for partition and separate possession. The plaintiff died on 10.7.2009. On 12.8.2009, the respondents filed an application (Exhibit 57) claiming to be close relatives and legal heirs. The trial court allowed the application immediately without calling for a reply from the defendant. The defendant then filed an application (Exhibit 62) to review/recall that order, contending that the respondents had not disclosed their relationship and that he was denied an opportunity to contest. The trial court rejected that application, stating that the application was filed within time and the question of legal heirship could not be decided without trial. The High Court held that under Order XXII Rule 5 CPC, when a sole plaintiff dies and persons claim to be legal heirs, the court must determine whether they are legal representatives. This determination cannot be made without giving the defendant an opportunity to file a reply. The trial court's order allowing substitution ex-parte was set aside, and the matter was remanded for fresh consideration after hearing all parties.
Headnote
A) Civil Procedure - Substitution of Legal Representatives - Order XXII Rule 5 CPC - Mandatory Inquiry - When a sole plaintiff dies and persons claim to be legal heirs, the court must determine whether they are legal representatives under Order XXII Rule 5 CPC, and cannot allow the application without giving the defendant an opportunity to contest. The trial court's order allowing substitution ex-parte was set aside. (Paras 4-5)
B) Civil Procedure - Natural Justice - Opportunity of Hearing - Order XXII Rule 5 CPC - The defendant must be given a chance to file a reply before an application for bringing legal representatives is allowed, especially when the applicants have not disclosed their relationship with the deceased. (Paras 4-5)
Issue of Consideration
Whether the trial court could allow an application to bring legal representatives on record without giving the defendant an opportunity to file a reply, and whether the court must determine the question of legal representation under Order XXII Rule 5 CPC.
Final Decision
The High Court allowed the writ petition, set aside the impugned order dated 12.8.2009 passed by the trial court on Exhibit 57, and directed the trial court to decide the application Exhibit 57 afresh after giving an opportunity to the defendant to file a reply and after hearing all parties.
Law Points
- Order XXII Rule 5 CPC mandates determination of legal representative status
- opportunity of hearing must be given to contesting parties before allowing substitution
- ex-parte order without notice is unsustainable
Case Details
2010 LawText (BOM) (09) 27
WRIT PETITION NO. 9258 OF 2009
Mr. Chandrakant N. Chavan
Tarabai Shakar Chavan (since deceased) and others
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Nature of Litigation
Civil writ petition challenging trial court's order allowing substitution of legal representatives without hearing the defendant.
Remedy Sought
Petitioner (original defendant) sought setting aside of the trial court's order allowing respondents to be brought on record as legal heirs of the deceased plaintiff.
Filing Reason
The trial court allowed the application for substitution ex-parte without giving the defendant an opportunity to file a reply.
Previous Decisions
Trial court allowed application Exhibit 57 on 12.8.2009 bringing respondents on record as L.Rs. of deceased plaintiff. Defendant's application Exhibit 62 to review/recall that order was rejected on the ground that the application was within time and the question of legal heirship could not be decided without trial.
Issues
Whether the trial court could allow an application to bring legal representatives on record without giving the defendant an opportunity to file a reply.
Whether the court must determine the question of legal representation under Order XXII Rule 5 CPC before allowing substitution.
Submissions/Arguments
Petitioner argued that the respondents had not disclosed their relationship with the deceased and that the application was allowed without giving him an opportunity to contest.
Respondents did not appear despite service.
Ratio Decidendi
Under Order XXII Rule 5 CPC, when a sole plaintiff dies and persons claim to be legal heirs, the court must determine whether they are legal representatives. This determination cannot be made without giving the defendant an opportunity to file a reply. An ex-parte order allowing substitution without hearing the defendant is unsustainable.
Judgment Excerpts
When the sole plaintiff died and an application is filed by some persons claiming to be legal heirs, it is necessary for the trial Court to determine as to whether such applicants are or are not the legal representative of the deceased plaintiff. This is made clear by Order XXII Rule 5, C.P.C.
Calling say of the defendant on that application was important and necessary, particularly because the applicants therein had not disclosed their relationship with the deceased.
Procedural History
Regular Civil Suit No.362/1999 was filed by Tarabai Shankar Chavan for partition and separate possession. Plaintiff died on 10.7.2009. On 12.8.2009, respondents filed application Exhibit 57 to be brought on record as legal heirs. Trial court allowed it ex-parte. Defendant filed application Exhibit 62 on 20.8.2009 to review/recall that order, which was rejected. Defendant then filed the present writ petition.
Acts & Sections
- Code of Civil Procedure, 1908 (CPC): Order XXII Rule 5
