Mona Rajesh Shah vs Gunvantiben Sakarchand Shah & 6 Other(S)

Ilesh J. Vora, J

This petition under Article 227 of the Constitution of India assails a legality and correctness of the order dated 30.11.2013 passed below Exh.21 in Regular Civil Appeal No.20 of 2008, by which the learned 6th Additional District Judge, Bhuj-Kutch refused to join the petitioner as an heir and legal representative of deceased – Maneklal Parsottam Shah and further directed the Trial Court to determine a question whether the present petitioner is legal representative of the deceased defendant or not.

This Court has heard learned Senior Counsel Mr.Mehul Shah assisted by learned counsel Mr.Zenil Shah and learned counsel Mr.Mehul Rathod for the respective parties.

Learned Senior Counsel Mr.Shah for the petitioner submitted that a suit was filed by the respondents-plaintiffs for redemption of mortgage and recovery of possession from one Mr.Maneklal Shah – the original defendant. The suit was decreed by the Court-below vide its judgment and decree dated 15.02.2008, in Civil Suit No.125 of 1978. The defendant – Maneklal Shah challenged the decree by preferring an appeal before the District Court at Bhuj being RCA No.20 of 2008. During the pendency of the appeal, the sole appellant – original defendant Maneklal Shah died on 14.02.2013. The petitioner Mrs.Mona Rajesh Shah moved an application Exh.21 to join her as an heir and legal representative of deceased Maneklal Shah. The respondent-plaintiff also filed an application before the learned Appellate Court, to join the petitioner as legal heir and representative of the sole defendant – appellant. The learned Trial Court, after hearing the parties, instead of allowing the application for joining the legal heirs, directed the subordinate Court to determine the question whether the petitioner being adopted daughter, is legal representative or not.

Being aggrieved with the impugned order, the petitioner herein has come up before this Court invoking supervisory jurisdiction under Article 227 of the Constitution of India.

Mr.Mehul Shah, learned Senior Counsel submitted that the learned Appellate Court committed manifest error of law while exercising its jurisdiction under Order 22 Rule 5 of the Code of Civil Procedure. It is in this context, it is submitted that in the facts of present case, the petitioner is only surviving legal heir of the deceased defendant and to establish the same, there is sufficient evidence to show that the petitioner is adopted daughter of the deceased and she falls under the definition of legal representative as defined under the Code. He further submitted that the Appellate Court fails to appreciate the admitted facts that the respondents themselves have preferred the application, admitting therein the present petitioner to be an heir and legal representative of Maneklal and seeking prayer to substitute the petitioner in place of deceased Maneklal and therefore, the question does not arise so as to warrant to make inquiry under provisions of Order 22 Rule 5 of the Code. Lastly, learned Senior Counsel submitted that in the present case, there is no dispute raised by the other side that the petitioner is not the legal representative of the deceased and therefore, when there is no question or dispute on this aspect, the provision of Order 22 Rule 5 of the Code is not applicable and if it is so, then the discretion exercised by the Appellate Court to refer the matter to the Trial Court to decide whether the petitioner is legal heirs or not, having been exercised against the statutory provisions of law and the admitted facts of the present case.

In view of the aforesaid contentions, learned Senior Counsel submitted that the Appellate Court failed to exercise its jurisdiction vested on it by law while passing the order, which requires interference under the supervisory jurisdiction of this Court and the same may be quashed and set aside.

On the other hand, learned counsel Mr.Mehul Rathod submitted that no error of law, much less an error apparent on the face of the record is committed by the Appellate Court while exercising its powers under Order 22 Rule 5 of the Code. He further submitted that the learned Appellate Court, before joining the petitioner as a party defendant, exercised its jurisdiction on the issue whether the petitioner is legal representative of the deceased or not and directed the subordinate Court to file its report. Thus, there is no any manifest error on the part of the Appellate Court and therefore, no reason or ground is made out for interference by this Court under supervisory jurisdiction.

Having heard learned counsel for the respective parties and on perusal of the impugned order, this Court is of the view that the learned Appellate Court could not have referred the matter to decide the question of legal representative as provided under Order 22 Rule 5 of the Code. A bare reading of Order 22 Rule 5 provides that where a question arises as to whether any person is or his not legal representative of the plaintiff, the Appellate Court may direct subordinate Court to try the question and to return the records together with the evidence, and its findings on the issue so that the Appellate Court may take into consideration in determining the issue of legal representative. In the facts of present case, the respondents themselves by preferring the application prayed that the petitioner may be joined as an heir and legal representative of the deceased. In such circumstances, this Court is of the considered opinion that when a question as to whether the petitioner is a legal representative or not is not raised, the Appellate Court could not have exercised its jurisdiction to refer the issue of legal representative to the subordinate Court as provided under the Order 22 Rule 5.

In view of the aforesaid, the Appellate Court committed an error of law which is apparent on the face of the record, and the Appellate Court exceeded its jurisdiction while passing the order and the same is not sustainable in law.

Accordingly, present petition is allowed. Application Exh.21 filed by the petitioner to join her as an heir and legal representative of the deceased the appellant is hereby allowed and she is directed to join as an appellant in the appeal. The necessary amendment to be carried out before the Appellate Court forthwith.