Dashrath
Rao Kate Vs. Brij Mohan Srivastava [2009] INSC 1691 (3 November 2009)
Judgment
"REPORTABLE"
IN THE
SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 1621 OF
2004 Dashrath Rao Kate .... Appellant Versus Brij Mohan Srivastava ....
Respondent
V.S.
SIRPURKAR, J.
1.
The judgment of the High Court, allowing the Second Appeal is in challenge
by way of this Appeal. The Second Appeal was filed by the respondent/defendant
challenging the judgment of the Appellate Court, whereby the Appellate Court
had confirmed the decree passed by the Trial Court.
The High
Court framed two questions of law, they were:
"(1)
Whether the Court below erred in law in treating the finding recorded in the
proceedings under Order XXII Rule 5, CPC to be binding and omitting to decide
the question in regard to the locus standi and entitlement of the plaintiff on
merits considering the specific pleas 2 urged by the defendant in the written
statement subsequent to the substitution of the new plaintiff? and;
(2)
Whether the Court below erred in law in granting a decree on the basis of the
ground contemplated under Section 12 (1) (c) of the M.P. Accommodation Control
Act even though the alleged disclaimer could not be taken to be anterior to the
filing of the suit?"
2.
Two other substantial questions proposed by the appellant
(respondent herein) before the High Court by the respondent herein were:
"(1)
Whether the defence contained in the written statement did constitute a ground
under Section 12 (1) (c) of the M.P. Accommodation Control Act? (2) Whether the
ground under Section 12 (1) (c) is available to a derivative title
holder?"
3.
The High Court, however, took into consideration the first
question of law and held that if that question of law was answered in favour of
the appellant (respondent herein), then the Second Appeal would have to be
allowed in favour of the tenant-respondent. It is only on that ground that the
appeal came to be allowed. In paragraph 7 of the impunged judgment, the High
Court expressed that the gist of the first question was whether the evidence
recorded by the Court below before allowing the application under Order 22 Rule
5 of the Code of Civil Procedure (hereinafter referred to as `CPC', for short)
could be looked into also for passing a final decree against the
appellant-defendant (respondent herein). It, however, observed that if that
evidence was ignored, then the plaintiff (appellant 3 herein) had not led any
evidence to show that he had locus standi to continue the suit.
4.
Few facts would have to be considered. Sukhiabai [sometimes
referred to as Sankhyabai] who was the sister of the grandfather of the
appellant/plaintiff, owned the house. She was issueless and the
appellant/plaintiff was brought up by Sukhiabai and was living with her.
The house
in dispute was let out to the respondent herein as a monthly tenant and a
written rent note was executed for that purpose. An application came to be
filed initially in the year 1990 vide case No. 125/84- 85/90-7 before the Rent
Control Authority for eviction against the present respondent. That eviction
application was allowed by the Rent Control Authority and hence a Revision came
to be filed vide C.R.No.198/96 in the High Court. It was during the pendency of
this Revision that Sukhiabai died. The respondent impleaded one Arun and Ramesh
claiming themselves to be class I heirs of Sukhiabai and eventually the
Revision was allowed by the High Court and the High Court remanded the case to
the Civil Court and directed that the questions as to whether intervention
could be sought on the basis of the Will and as to whether the respondent was entitled
to continue the suit, would have to be gone into by the Trial Court. Upon
remand, the suit was numbered as 119-A/96 before the Civil Judge, Gwalior. The
appellant/plaintiff moved an application for 4 amendment of the plaint and that
amendment was allowed. Against that, the present respondent filed Civil
Revision No.91/97, while deciding which, the High Court directed that the
question of legal representative of deceased Sukhiabai had to be determined
first and after determining the rights of legal representative, a proper party
has to be impleaded as the legal representative and the party so impleaded as
legal representative would alone have the right to amend the plaint.
5.
The present appellant then filed an application to bring himself
as the legal representative on record on the basis of the Will which was
executed by Sukhiabai in his favour on 26.03.1990. The appellant/plaintiff
examined one Prabhakar Rao as PW-2 on 01.09.1997. After due inquiry, the
application of the present appellant was allowed by the Trial Court and that is
how the present appellant was brought on record in place of Sukhiabai. This
order was not challenged and it became final.
6.
The parties thereafter led evidence and on that basis the Trial
Court decreed the suit by its judgment dated 22.01.1998. That was challenged by
way of an appeal before the Additional District Judge, Gwalior, who dismissed
the appeal by judgment dated 15.05.1998. These concurrent findings thereafter
were challenged before the High Court and the High Court has upset the
concurrent findings and has proceeded to dismiss the suit. It is this judgment
which has fallen for our consideration.
7.
It is clear from the findings of the Trial Court and Appellate
Court that the suit has been allowed on the ground of Sections 12 (1) (c) and
12 (1) (e) of the M.P. Accommodation Control Act. The High Court has accepted
the arguments of the respondent herein that in spite of the fact that the
appellant/plaintiff was brought on record as legal representative of Sukhiabai
on the basis of the Will, yet he should have led more evidence to prove the
Will in order to prove that he had become owner on the basis of the
testamentary succession of the concerned house. In short, the High Court came
to the conclusion that since the inquiry under Order 22 Rule 5, CPC was of the
summary nature and was limited only to the determination of the right of the
appellant herein to be impleaded as the legal representative of Sukhiabai, any
finding given in that inquiry would not be binding on the defendant (respondent
herein) at the final stage of the suit and the plaintiff (appellant herein)
would have to again prove the Will in order to establish his ownership
vis-`-vis the concerned premises. The High Court went on to hold that since the
title of the plaintiff (present appellant) was based on the Will and it was
disputed by the defendant (present respondent), therefore, the
appellant/plaintiff had to independently prove his title. For that purpose the
evidence led at the time of inquiry under Order 22 Rule 5, CPC would be of no
consequence. The High Kishori Lal [AIR 1976 HP 74], wherein it was observed
that the evidence 6 recorded during the inquiry under Order 22 Rule 5, CPC
could not be equated with the evidence recorded at the time of decision on
merits.
Mohammed
[AIR 1965 MP 72]. The third decision relied and followed by L.R. Bhuwan Singh
[AIR 1961 MPLJ 398]. The High Court then proceeded to reject the argument on
behalf of the appellant/plaintiff that this was only a suit for the ejectment
under the M.P. Accommodation Control Act and the respondent/defendant being an
outsider could not have challenged the validity of the partition. On merits,
all that was required to be seen was as to whether the appellant herein had
been properly brought on record as legal representative of Sukhiabai and if
that was so, there was no question of non-suiting the appellant/plaintiff on
the basis that the Will was not proved independently. The High Court also went
on to record a finding that the appellant herein was not a family member of
Sukhiabai as she was not survived by any class I heir. In short, the High Court
held that the Will was not proved independently, though on its basis, the
appellant/plaintiff was allowed to be brought as a legal representative of
Sukhiabai, and proceeded to dismiss the suit.
8.
We are unable to agree with the reasoning of the High Court.
9.
It is an admitted position that when the Civil Revision was
pending before the High Court at the instance of the tenant-respondent, it was
filed initially only against one Ramesh and Arun Kate, since Sukhiabai had
already died after the order passed in her favour. That Civil Revision was
allowed by the High Court and the High Court directed to convert the matter
into a suit under M.P. Accommodation Control Act. That is how the original
application for conviction was transferred to the Civil Court for hearing. It
was before the Civil Court that the present appellant filed an application for
being impleaded and the same was allowed without any investigation. The said
impleadment was claimed on the basis of a will by Sukhiabai in favour of the
appellant. In the Revision No. 91 of 1997 against this impleadment, the High
Court directed the Trial Court to decide as to who is the legal heir of Sukhiabai
and to substitute such a person as legal heir. In pursuance of that, a full
fledged inquiry was conducted by the Trial Court, wherein three witnesses came
to be examined by the present appellant to establish the will. In that enquiry,
the Trial Court framed a question whether will was written by Sukhiabai and
whether on the basis of the said will, appellant Dashrath Rao was her legal
representative in this case. One Prabhakar Rao (PW-2) and Ganpat Rao were
witnesses on the original will (Exhibit P-1). Ganpat Rao has expired. Besides
himself, the appellant/plaintiff examined said Prabhakar Rao (PW-2) and got the
will proved. Prabhakar Rao (PW-2) fully supported the case of the appellant in
8 respect of the will. It is noteworthy that both, appellant and said Prabhakar
Rao, were extensively cross-examined. Not only this, but the other person
Ramesh Kate, who was joined as the legal representative of Sukhiabai in the
first Revision, was also got examined by the appellant, who claimed clearly
that he had no interest in the property and in fact, the suit house was
bequeathed by Sukhiabai in favour of the appellant.
10.
The respondent/defendant also examined himself and according to
him, the signatures on the will was not that of Sukhiabai. After considering
the evidence fully and in details, the Trial Court, by its order dated
9.9.1997, gave a declaration that present appellant Dashrath Rao was the legal
representative of Sukhiabai in the case. The Trial Court also clarified that
the order was only for the purpose of bringing legal representatives on record.
Obviously it was under Order 22 Rule 5, CPC. It is noteworthy that this order
is not further challenged by the tenant-respondent.
11.
It was thereafter that the appellant/plaintiff made amendments and
claimed himself to be the owner of the house in question. He also pointed out
that the respondent/defendant was a tenant at a monthly rent of Rs.170/- of the
whole house, but later on, the respondent/defendant had vacated one room of his
tenancy and handed over it to Sukhiabai and retained 2 rooms and bathroom and
the rent was fixed at Rs.130/- per month. He also pointed out that tenant had
not paid any rent from 9 1.1.1994. He also reiterated his relationship with
Sukhiabai and the facts regarding the will, as also his bonafide personal need
of the rented premises.
12.
In his written statement, the tenant-respondent admitted Sukhiabai
to be his landlady and also accepted about the rent note dated 10.2.1980.
He also
again denied that the appellant/plaintiff had become owner and also denied his
need. On that basis, issues came to be framed, which are as under:- (i) Whether
there is relation of land lord and tenant between plaintiff and the defendant?
(ii) Whether the defendant has not paid/cleared outstanding rent from 1.1.1984
to the plaintiff? (iii) Whether the plaintiff is in genuine need of the suit
accommodation for his own residential purpose? (iv) Relief and Costs?
13.
The evidence was again led by the appellant, wherein he asserted
that the respondent/defendant was the tenant of Sukhiabai and that he had
become his tenant now as per the will, since he has become owner on the basis
of the will. He also reiterated the will (Exhibit P-1), regarding which Court
had given decision in the enquiry under Order 22 Rule 5 CPC. He then deposed
about his need. We have seen the cross-examination of this witness by the
respondent/defendant, which is lengthy cross-examination 10 and very strangely,
we find not a single relevant question asked to him about the will. He was
cross-examined mainly as regards his need. In para 18, a stray suggestion was
given that Sukhiabai had not executed the will in his favour and that he had
manipulated to prepare fraudulent will.
The appellant
reiterated that the will was not only executed, but the Court has accepted it.
Beyond this, there is nothing in the cross-examination.
The
respondent/defendant also examined himself and in his evidence also, in para 4,
he reiterated that the will shown was forged. He was specifically asked in his
cross-examination and he had to admit that he had filed no Revision against the
order dated 9.9.1997, by which the Will was held proved, though he asserted
that he was going to file the same. It was on this basis that the Trial Court
held all the issues in favour of the appellant.
14.
Before the first Appellate Court, again it was reiterated by the
tenant- respondent (appellant therein) that the Trial Court had committed an
error in holding the appellant/plaintiff to be the heir of the suit house. Some
judgments were cited in support of this contention, they being Mahendra Court
distinguished all these decisions on the factual aspects and held that 11 the
Will (Exhibit P-1) was proved by the evidence of the appellant/plaintiff, as
also the attesting witness. It was also pointed out that the Will was not
disputed by anybody else, muchless even the interested persons. On the other
hand, they had supported the Will. The Appellate Court came to the conclusion that
in that view, the tenant could not be allowed to raise question on the legality
of the title of the appellant herein. The Appellate Court thereafter considered
the matter on merits regarding the bonafide need of the appellant and held it
to be proved. The Appellate Court further went on to hold that since the tenant
had challenged the title of the landlord, i.e., the appellant during the
pendency of the eviction petition, the landlord became entitled under Section
12(1)(c) to get the decree of eviction. It is on this basis that the appeal
came to be dismissed.
15.
The High Court, however, took the view that the Will had to be
proved all over again, though it was held proved earlier in the enquiry under
Order 22 Rule 5, CPC. We have already earlier referred to the findings of the
High Court. In our view, the view of the High Court that the Will had to be
proved again, is incorrect.
16.
As a legal position, it cannot be disputed that normally, an
enquiry under Order 22 Rule 5, CPC is of a summary nature and findings therein
cannot amount to res judicata, however, that legal position is true only in
respect of those parties, who set up a rival claim against the legatee. For 12
example, here, there were two other persons, they being Ramesh and Arun Kate,
who were joined in the Civil Revision as the legal representatives of
Sukhiabai. The finding on the Will in the order dated 9.9.1997 passed by the
Trial Court could not become final as against them or for that matter, anybody
else, claiming a rival title to the property, vis-`- vis, the appellant herein,
and, therefore, to that extent, the observations of the High Court are correct.
However, it could not be expected that when the question regarding the Will was
gone into in a detailed enquiry, where the evidence was recorded not only of
the appellant, but also of the attesting witness of the Will and where these
witnesses were thoroughly cross-examined and where the defendant also examined
himself and tried to prove that the Will was a false document and it was held
that he had utterly failed in proving that the document was false, particularly
because the document was fully proved by the appellant and his attesting
witness, it would be futile to expect the witness to lead that evidence again
in the main suit. It was at the instance of the High Court in the revisional
jurisdiction that the direction was given that the Trial Court should first
decide as to whether who could be the legal representative of Sukhiabai and
after complete enquiry, the Trial Court held the Will to be proved. The Will
was not only attacked by the appellant on its proof, but also on merits,
inasmuch as the respondent/defendant went on to contend before the Trial Court
during that enquiry that the Will was unnatural, unfair and was 13 executed in
doubtful circumstances. The respondent/defendant had also Gangotri Datt Singh
[AIR 1955 SC 346]. The Trial Court, however, rejected this contention. On the
other hand, the Trial Court found on merits that the appellant was living with
Sukhiabai and Sukhiabai had adopted him orally.
17.
Evidence of Ramesh Kate was also referred to, who asserted about
this fact. Reference was also made to the evidence of Sukihabai herself in the
Rent Control Case No. 14/90-91 that she had adopted Dashrath Rao (appellant
herein) and that Dashrath Rao lived with her. Clear cut findings were given by
the High Court in these proceedings that from the evidence of Prabhakar Rao
(PW-2), the attesting witness, it was clear that Sukhiabai had signed in his
presence and he had also signed in present of Sukhiabai and had also seen the
other attesting witness signing the Will and attesting the same. Not only this,
but the Trial Court also wrote a finding that the objection raised by the
defendant (respondent herein) that Sukhiabai was not in a position to
understand the Will on account of her poor physical condition, was also
rejected by the Trial Court. It was also noted that the Will was executed six
years prior to her death and as such, there was no question of Sukhiabai being
suffered with any mental or physical disability for executing the Will.
Therefore, it is on this basis that the Will was held to 14 be proved. Once
this was the position and in the same suit, the further evidence was led, there
was no point on the part of the appellant/plaintiff to repeat all this evidence
all over again. We have closely seen the relied Kishori Lal (cited supra). The
ruling undoubtedly correctly holds that the finding in an enquiry under Order
22 Rule 5 cannot operate as res judicata, provided the very question needs to
be decided. The factual situation, however, differs substantially. The case
before the Himachal Pradesh High Court only pertained to the correctness of the
order passed in the enquiry under Order 22 Rule 5, CPC. That was not a case
where the question, as in the present case, fell for consideration. In fact,
the Himachal Pradesh High Court also observed and, in our view, correctly, that
it was still open to the petitioner (therein) during the trial of the suit to
establish that the Will was competent and confered no right, title or interest
on the respondent and, therefore, the respondent was not entitled to any relief
in the suit. Unfortunately, on evidence in this case, the respondent/defendant
did not do anything and did not even challenge the evidence of the appellant
that he had become owner of the Will. Merely because the evidence of
respondent/defendant and Prabhakar Rao (PW- 2) was not repeated all over again,
it cannot be held that the appellant/plaintiff could be non-suited on this
ground.
18.
Dr. Kailash Chand, Learned Counsel, appearing for the respondent
1995 A.P. 351]. It is correctly held by the Andhra Pradesh High Court that the
Order 22 Rule 5 is only for the purpose of bringing legal representatives on
record for conducting of proceedings in which they are to be brought on record
and it does not operate as res judicata. However, the High Court further
correctly reiterated the legal position that the inter se dispute between the
rival legal representatives has to be independently tried and decided in
separate proceedings. Here, there was no question of any rivalry between the
legal representatives or anybody claiming any rival title against the
appellant/plaintiff. Therefore, there was no question of the appellant/plaintiff
proving the Will all over again in the same suit. The other judgment relied
upon is Full Bench Judgment of Punjab & Haryana Punjab & Haryana 130].
The same view was reiterated. As we have already pointed out, there is no
question of finding fault with the view expressed. However, in the peculiar
facts and circumstances of this case, there will be no question of non-suiting
the appellant/plaintiff, particularly because in the same suit, there would be
no question of repeating the evidence, particularly when he had asserted that
he had become owner on the basis of the Will (Exhibit P-1). In a case in
Shaligram Bhagoo Kunbi 16 the Division Bench of that Court consisting Hon'ble
Stone C.J. and Hon'ble Vivian Bose, J., considered the question. The Division
Bench, firstly, relied on was as follows:- "It is no longer open to the
Court to stay the suit until the dispute as to who is the legal representative
of a deceased plaintiff has been determined in a separate suit. The question as
to who was the representative of a deceased defendant could not be left open
for decision in another suit, even under the old Code, but had to be decided by
the Court itself. Under the present Code, all such questions have to be decided
by the Court."
The Bench
then proceeded to refer to Bombay High Court decision AIR All. 412] and went on
to record that order under Order 22 Rule 5 was not a res judicata. After
referring to these rulings, the Bench held:- "But there is an important
qualification to this. It is true the order is not res judicata, but for all
that, the decision is final so far as the suit in which it is made is
concerned, not on the ground of res judicata but because of Section 47. No
subsequent decision in a separate suit can be used to affect the rights of the parties
so far as questions relating to the `execution, discharge or satisfaction' of
the decree in connection with which the order was made is concerned."
The Bench
further observed:- "Once a person is joined as a legal representative
under Order 22 Rule 5, and once it is accepted that that is final so far as 17
that litigation is concerned, then it follows to the decree, and, thereafter,
all matters relating to the `execution, discharge or satisfaction' of that
decree must be decided under Section 47 and not in a separate suit."
(Emphasis supplied) Ultimately, the Bench came to the conclusion:- "All
that, in our opinion, is not res judicata is the question whether or not the
person joined as the legal representative really occupies that character. That
question is not finally concluded by a decision under Order 22 Rule 5 except in
so far as it concerns the suit in which the decision is made. To reported in 17
NLR 45. The appeal is dismissed with costs."
(Emphasis
supplied) Therefore, it is clear that at least insofar as the suit in the
present case is concerned, the question regarding the appellant's right to
represent was closed. There could be a second suit, questioning his entitlement
on the basis of Will, but admittedly, there is no such challenge by anybody to
his status as a legatee of Sukhiabai. Insofar as the suit in the present case
is concerned, the question was finally decided under Order 22 Rule 5, CPC and
in the same suit, it could not be re-agitated. Obviously, the impugned judgment
is incorrect when it holds that the appellant/plaintiff had to lead fresh
evidence all over again to prove his status on the basis of the Will, which was
held to be proved in the enquiry under Order 22 Rule 5, CPC.
19.
All this is apart from the fact that the tenant in this case could
not have challenged the Will at all. He was an utter outsider and had no
interest in the property as owner. Indeed, from the pleadings and evidence, it
is clear that tenant-respondent has not even ventured to claim any rival interest
against the appellant/plaintiff.
20.
For all these reasons, we are unable to agree with the impugned
judgment and we would choose to set aside the same and restore the two
judgments of the Trial Court and Appellate Court. The appellant/plaintiff,
therefore, succeeds with costs of Rs.25,000/-.
...........................................J. (Markandey Katju)
........................................J.
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