Mrs. Annupam Pruthi & Ors. Vs. Smt. Rajen Bal & Ors.
EmailAppeal: Civil Appeal No. 2731 (N) of 1977.
Petitioner: Mrs. Annupam Pruthi & Ors.
Respondent: Smt. Rajen Bal & Ors.
Apeal: Civil Appeal No. 2731 (N) of 1977.
Judges: K.N. SINGH & M.H.KANIA, JJ.
Date of Judgment: Aug 30, 1988
Appearances:
M/s. E.C.Agarwala, C.M. Chopra and Vineet Kumar advocates for the parties.
Head Note:
CODE OF CIVIL PROCEDURE, 1908:
O.22 R.5- Legal representatives – Substitution of – On an application by R, widow of the deceased of P, the question of substitution of heirs and legal representatives of P was decided by the Order of the Single judge dated 24.7.1972 – R filed another application after a year for recalling the Order of 24.7.1972 by which the legal heirs of P as proposed by her had been substituted – Held that Provision of Order 22 Rule 5 stood fully complied with when the question of substitution of heirs and legal representatives of P was decided by the Order dated 24.7.1972 – That order could not be recalled at the instance of R.
JUDGEMENT:
SINGH,J.:
1. This appeal has arisen out of substitution proceedings for bringing on record the legal representatives of deceased Prakash Bal in Arbitration proceedings pending before the High Court.
2. Prakash Bal deceased made an application before the High Court of Jammu & kashmir under Section 20 of the Arbitration Act for referring certain disputes to Arbitration which had arisen between him and other partners in respect of business carried on by the partnership firm, named, Naaz Theatres, during the pendency of that application Prakash Bal died on 14.6.1972. Smt. Rajen bal widow of Prakashs Bal made an application before the court on 16.6.1972 for bringing on record the legal she stated that Prakash 99Bal had died leaving behind herself as widow, Rohit Bal minor son, and two maried daughters Mrs. Anupam Pruthi and Mrs. Rupum Khattan as his heirs and legal representatives. She made a prayer for bringing the names of the aforesaid persons on record as legal heirs of the deceased Prakash Bal. Since the parties did not oppose the application, the learned single judge before whom the proceedings were pending allowed the application by his order dated 24.4.1972 as a result of which the aforesaid persons as proposed by Smt. Rajen Bal were substituted as legal heirs and representatives of Prakash Bal, deceased. Later on GhulamQadir a party to the proceedings made an application for impleading one Anmola Rattan with the allegation that he was the son of deceased prakash Bal by his first wife. The learned single judge rejected that application on the ground that since Ghulam had consented to the substitution of legal representatives of Prakash Bal as proposed by Mrs. Rajen Bal therefore he could not question the earlier order dated 24.7.1972. After a year Mrs. Rajen Bal the widow of the deceased Prakash Bal filed another application on 24.4.1973 for the recall of the earlier order dated 24.7.1972 by which the legal heirs of prakash Bal as proposed by her had been substituted. In her application she stated that she had come to know that Prakash Bal had executed a will under which he had bequeathed his entire property in favour of her and Rohit Bal, minor son to the exclusion of all his other heirs. The application was opposed by mrs. Anupum Pruthi and Mrs. Rupum Khattan, who had already been impleaded as parties. Smt. Rajen Bal made another application seeking permission dated 24.7.1972 and dismissed the two applications filed by Mrs. Raje Bal a Division Bench of the High Court by its order dated 7.1.1977 set aside the order of the single judge dated 23.4.1976 and directed the single judge to permit Mrs. Rajen Bal to lead evidence for proviing the will and to dispose of the two applications dated 14.4.1973 and 24.5.1973 on merits in the lights of the observations made in the judgement. Aggrieved by that order mrs. Anupam Pruthi and mrs. Rupum Khattan have filed this appeal after obtaining special leave against the aforesaid order of the Division Bench.
3. Learned counsel for appellants urged that once substitution application made by Smt. Rajen Bal had been allowed by the learned single judge, the order had become final and it could not be recalled or modified by the learned single judge on the application of Smt. Rajen Bal merely because she had raised claim on the basis of a will alleged to have been executed by Prakash Bal, deceased. He further urged that the Division Bench of the High Court erred in holding that the question as to who were the legal heirs and representatives of Prakash Bal deceased had been raised, it was mandatory duty of the learned single judge to decide the same as enjoined by Order 22 rule 5 of the Code of Civil Procedure. He further urged that Mrs. Rajen Bal and Rohit Bal being consenting parties to the order of substitution dated 24.7.1972 they were estopped from questioning the legality of the said order or for asking the court to recall or modify the same. Learned counsel for the respondents on the other hand urged that once a dispute relating to the question as to who were the legal representatives and heirs of Prakash Bal had been raised by Smt. Rajen Bal, it was the mandatory duty fo the court to decide the same under Order 22 Rule 5 of the Code of Civil Procedure, which require the Court to decide the same under Order 22 Rule 5 of the Code fo Civil procedure, which require the Court to decide the same on merits and if necessary it could examine thw witnesses. The Division bech had therefore rightly set aside the order of the single Judge and directed him to decide the dispute in accordance with provisions of Order 22 rule 5.
4. We have given our anxious consideration to the questions raised by the learned counsel for the parites. We are however of the opinion that having regard to the facts and circumstances of the case the Division Bench was not justified in setting aside the order of the learned single judge dated 23.4.1976. Admittedly Smt. Rajen bal had herself made an application for bringing on record the legal heirs and representatives of Prakash Bal deceased and according to her Mrs. Anupum Pruthi and Mrs. Rupum Khattan, the two married daughters of Prakash Bal were legal heirs and representatives along with her and Rohit bal, minor son. Since no party raised any objection, the learned single judge was justified in directing the substitution of legal heirs of Prakash Bal deceased as proposed by smt. Rajen Bal. Smt. Rajen Bal made another application for the recall of the Order dated 24.7.1972 on the basis of Will alleged to have been found alter on. The question whether Will is genuine and whether Prakash Bal had executed the Will gifting the entire property in dispute to Mrs. Rajen Bal and her minor son, exclusively, is highly disputed, which can be decided in an appropriate proceedings on the basis of evidence produced by the parties. Since the substitution application had already been disposed of, that question could not be re-opened subsequently at the instance of smt.Rajen Bal. Provisions of Order 22 Rule 5 stood fully complied with when the question of substitution of heirs and legal representatives of Prakash Bal was decided by the Order dated 24.7.1972. That order could not be recalled at the instance of Smt. Rajen Bal. We are therefore of the opinion that the learned single judge’s order dated 23.4.1976 must be upheld. It would however be open to Smt. Rajen Bal to claim her right under the Will through appropriate proceedings before competent Court and this order will not prejudice her claim.
5. We accordingly allow the appeal set aside the order of the Division Bench and restore the order of the learned single judge dated 23.4.1976. We furhter direct the learned single judge to decide the arbitration proceedings at an early date. There will be no order as to costs.
1. This appeal has arisen out of substitution proceedings for bringing on record the legal representatives of deceased Prakash Bal in Arbitration proceedings pending before the High Court.
2. Prakash Bal deceased made an application before the High Court of Jammu & kashmir under Section 20 of the Arbitration Act for referring certain disputes to Arbitration which had arisen between him and other partners in respect of business carried on by the partnership firm, named, Naaz Theatres, during the pendency of that application Prakash Bal died on 14.6.1972. Smt. Rajen bal widow of Prakashs Bal made an application before the court on 16.6.1972 for bringing on record the legal she stated that Prakash 99Bal had died leaving behind herself as widow, Rohit Bal minor son, and two maried daughters Mrs. Anupam Pruthi and Mrs. Rupum Khattan as his heirs and legal representatives. She made a prayer for bringing the names of the aforesaid persons on record as legal heirs of the deceased Prakash Bal. Since the parties did not oppose the application, the learned single judge before whom the proceedings were pending allowed the application by his order dated 24.4.1972 as a result of which the aforesaid persons as proposed by Smt. Rajen Bal were substituted as legal heirs and representatives of Prakash Bal, deceased. Later on GhulamQadir a party to the proceedings made an application for impleading one Anmola Rattan with the allegation that he was the son of deceased prakash Bal by his first wife. The learned single judge rejected that application on the ground that since Ghulam had consented to the substitution of legal representatives of Prakash Bal as proposed by Mrs. Rajen Bal therefore he could not question the earlier order dated 24.7.1972. After a year Mrs. Rajen Bal the widow of the deceased Prakash Bal filed another application on 24.4.1973 for the recall of the earlier order dated 24.7.1972 by which the legal heirs of prakash Bal as proposed by her had been substituted. In her application she stated that she had come to know that Prakash Bal had executed a will under which he had bequeathed his entire property in favour of her and Rohit Bal, minor son to the exclusion of all his other heirs. The application was opposed by mrs. Anupum Pruthi and Mrs. Rupum Khattan, who had already been impleaded as parties. Smt. Rajen Bal made another application seeking permission dated 24.7.1972 and dismissed the two applications filed by Mrs. Raje Bal a Division Bench of the High Court by its order dated 7.1.1977 set aside the order of the single judge dated 23.4.1976 and directed the single judge to permit Mrs. Rajen Bal to lead evidence for proviing the will and to dispose of the two applications dated 14.4.1973 and 24.5.1973 on merits in the lights of the observations made in the judgement. Aggrieved by that order mrs. Anupam Pruthi and mrs. Rupum Khattan have filed this appeal after obtaining special leave against the aforesaid order of the Division Bench.
3. Learned counsel for appellants urged that once substitution application made by Smt. Rajen Bal had been allowed by the learned single judge, the order had become final and it could not be recalled or modified by the learned single judge on the application of Smt. Rajen Bal merely because she had raised claim on the basis of a will alleged to have been executed by Prakash Bal, deceased. He further urged that the Division Bench of the High Court erred in holding that the question as to who were the legal heirs and representatives of Prakash Bal deceased had been raised, it was mandatory duty of the learned single judge to decide the same as enjoined by Order 22 rule 5 of the Code of Civil Procedure. He further urged that Mrs. Rajen Bal and Rohit Bal being consenting parties to the order of substitution dated 24.7.1972 they were estopped from questioning the legality of the said order or for asking the court to recall or modify the same. Learned counsel for the respondents on the other hand urged that once a dispute relating to the question as to who were the legal representatives and heirs of Prakash Bal had been raised by Smt. Rajen Bal, it was the mandatory duty fo the court to decide the same under Order 22 Rule 5 of the Code of Civil Procedure, which require the Court to decide the same under Order 22 Rule 5 of the Code fo Civil procedure, which require the Court to decide the same on merits and if necessary it could examine thw witnesses. The Division bech had therefore rightly set aside the order of the single Judge and directed him to decide the dispute in accordance with provisions of Order 22 rule 5.
4. We have given our anxious consideration to the questions raised by the learned counsel for the parites. We are however of the opinion that having regard to the facts and circumstances of the case the Division Bench was not justified in setting aside the order of the learned single judge dated 23.4.1976. Admittedly Smt. Rajen bal had herself made an application for bringing on record the legal heirs and representatives of Prakash Bal deceased and according to her Mrs. Anupum Pruthi and Mrs. Rupum Khattan, the two married daughters of Prakash Bal were legal heirs and representatives along with her and Rohit bal, minor son. Since no party raised any objection, the learned single judge was justified in directing the substitution of legal heirs of Prakash Bal deceased as proposed by smt. Rajen Bal. Smt. Rajen Bal made another application for the recall of the Order dated 24.7.1972 on the basis of Will alleged to have been found alter on. The question whether Will is genuine and whether Prakash Bal had executed the Will gifting the entire property in dispute to Mrs. Rajen Bal and her minor son, exclusively, is highly disputed, which can be decided in an appropriate proceedings on the basis of evidence produced by the parties. Since the substitution application had already been disposed of, that question could not be re-opened subsequently at the instance of smt.Rajen Bal. Provisions of Order 22 Rule 5 stood fully complied with when the question of substitution of heirs and legal representatives of Prakash Bal was decided by the Order dated 24.7.1972. That order could not be recalled at the instance of Smt. Rajen Bal. We are therefore of the opinion that the learned single judge’s order dated 23.4.1976 must be upheld. It would however be open to Smt. Rajen Bal to claim her right under the Will through appropriate proceedings before competent Court and this order will not prejudice her claim.
5. We accordingly allow the appeal set aside the order of the Division Bench and restore the order of the learned single judge dated 23.4.1976. We furhter direct the learned single judge to decide the arbitration proceedings at an early date. There will be no order as to costs.
