Musammat Chandmani vs Kartick Singh

We think that the question for determination in this application is one which ought to be decided by the Court itself. That can only be determined after taking evidence. We may either hear evidence ourselves by affidavit or orally, to both of which courses there is obvious objection, or we may direct that evidence be taken before the Trial Court. It is clearly the most convenient course to direct that the evidence be taken before the Trial Court. The parties reside in that neighbourhood and the oral evidence, which is always more satisfactory than evidence by affidavit, can then be taken. Whether or not the Trial Court before whom the evidence is taken should submit a report and come to findings upon the questions concerning which the evidence is taken, is a matter which has been brought to our consideration. It appears from Order XXII, Rule 5, that where the question arises as to whether any person is or is not the legal representative of a deceased party, such question shall be determined by the Court. The Court there means the Court before whom the question arises, that is to say, the Trial Court if the question arises at the trial stage and the Appellate Court if the question arises when the Appellate Court is seized of the case. There is no provision in the Code for delegating our powers conferred under this rule and, therefore, we do not think it would be proper to ask the Trial Court to report upon and determine the question, which is a question for the determination of this Court alone. In the circumstances we think the order should be that the Trial Court be directed to take evidence upon the question as to who is the proper legal representative of the deceased plaintiff Babu Kartick Singh and to return the evidence to this Court at as early a date as possible.