Gangadhar Choudhary v. Avdesh Chand Gupta & Ors.

1. This application has been filed by the appellant in O.A. 66/2022 seeking condonation of delay of 123 days in filing of the said Chamber Appeal.

2. In the application, it is stated that the appeal, that is OA 66/2022, has been filed against the Orders dated 03.06.2022 and 07.10.2022 passed by the learned Joint Registrar (Judicial) in I.A. 12371/2021 and I.A. 10558/2022 filed under Order XXII Rule 3 of the Code of Civil Procedure, 1908 (hereinafter referred to as ‘CPC’) and Section 151 of the CPC respectively.

3. It is stated that by the Order of 03.06.2022, the learned Joint Class-I Legal Heirs of the deceased plaintiff for purposes of issuing notice to them in I.A. 12371/2021. The appellant, thereafter, filed an application being I.A. 10558/2022 stating that as the deceased plaintiff was not married and her parents had pre-deceased her, there were no Class-I Legal Heir of the plaintiff. The said application was dismissed by the learned Joint Registrar (Judicial) by the Order dated 07.10.2022.

4. The learned counsel for the appellant submits that, thereafter, the appeal, that is, O.A. 66/2022, has been filed challenging the Orders dated 03.06.2022 and 07.10.2022. He submits that the delay is bona fide and for a sufficient cause, as the appellant was trying to seek clarification of the Order dated 03.06.2022, which was eventually dismissed by the learned Joint Registrar (Judicial) by the Order of 07.10.2022.

5. On the other hand, the learned counsel for the defendant no.2 opposes the present application by submitting that the appellant should have given particulars of the legal heirs of the father of the deceased plaintiff in terms of Section 15(1)(d) of the Hindu Succession Act, 1956 (hereinafter referred to as the ‘Act’). He submits that, therefore, the delay in filing of the appeal against the Order of 03.06.2022 has not been adequately explained by the appellant.

6. Having considered the submissions made by the learned counsels for the parties, I am of the opinion that the appellant had filed an application seeking clarification of the Order dated 03.06.2022 passed by the learned Joint Registrar (Judicial). The Chamber Appeal, that is, O.A. 66/2022, has been filed by the appellant within the period prescribed from the Order dated 07.10.2022. The delay in filing of the Chamber Appeal, therefore, has been adequately explained by the appellant and is hereby condoned.

7. The application is allowed. O.A. 66/2022

8. This appeal has been filed challenging the Orders dated 03.06.2022 and 07.10.2022 passed by the learned Joint Registrar (Judicial).

9. By the Order dated 03.06.2022, on an application being I.A. 12371/2021 filed by the appellant under Order XXII Rule 3 of the CPC seeking his substitution for the plaintiff relying upon the Registered Will dated 31.12.2015 allegedly executed by the plaintiff in his favour, the learned Joint Registrar (Judicial) directed the appellant to give the particulars of Class-I Legal Heirs of the deceased plaintiff and directed issuance of notice to such legal heirs.

10. The appellant then filed an application, being I.A. 10558/2022, stating that the deceased plaintiff was not married and that her parents had pre-deceased her. He, therefore, sought further directions from the learned Joint Registrar (Judicial) and, in the alternative, to be substituted for the deceased plaintiff.

11. By the Impugned Order dated 07.10.2022, the learned Joint estate shall inter alia devolve on the heirs of the father. The learned Joint Registrar (Judicial), therefore, found no merit in the said application and dismissed the same.

12. Aggrieved by the above Orders, the appellant has filed the present appeal.

13. The learned counsel for the appellant, placing reliance on the judgments of the Supreme Court in Varadarajan v. Kanakavalli & Ors. (2020) 11 SCC 598 and Omprakash & Ors. v. Radhacharan & Ors. (2009) 15 SCC 66, submits that the enquiry on an application under Order XXII Rule 5 of the CPC is rather limited and is only for the purpose of bringing legal representatives of the deceased plaintiff on record for the conduct of the proceedings. They do not operate as res judicata and the rival disputes between the legal heirs have to be independently tried and decided in separate proceedings. The appellant seeking impleadment merely represents the estate of the deceased and, therefore, there is no question of the appellant proving the said Will in such proceedings.

14. He submits that Section 15(1) of the Act would apply only where the deceased female had died intestate. In the present case, the appellant is relying upon a Registered Will left behind by the deceased plaintiff and, therefore, Section 15(1) of the Act shall have no application. He submits that, therefore, the learned Joint Registrar (Judicial) has erred in calling upon the appellant to submit the details of the Class-I Legal Heirs, despite the plaintiff being an unmarried Hindu, and later, asking the appellant to give details of the legal heirs of the plaintiff in terms of Section 15(1)(d) of the Act, even though the plaintiff had left behind a Will in favour of the appellant. He submits that the Impugned Orders are, therefore, liable to be set aside.

15. On the other hand, the learned counsel for the defendant no.2 submits that the plaintiff had, in fact, no right to the suit property, having transferred the same in favour of Sh.Ashok Kumar Jain from whom the property eventually got transferred in favour of the defendants. He submits that Order XXII Rule 5 of the CPC would also have no application in the facts of the present case inasmuch as it would apply only where there is a dispute as to who is the legal representative of the deceased plaintiff.