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REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.6318 OF 2010

MAHANTH SATYANAND @ RAMJEE SINGH Appellant(s)

Versus

SHYAM LAL CHAUHAN AND OTHERS Respondent(s)

W I T H

CIVIL APPEAL NO. 6319 OF 2010

SWAMI TRIYOGANAND Appellant Versus

SHYAM LAL CHAUHAN AND OTHERS Respondent(s)

J U D G M E N T

N.V. RAMANA, J.

These appeals  by  special  leave  are directed against  an

interim order dated 24.2.2009 passed by the learned Single Judge

of the High Court of Judicature at Patna in Second Appeal No. 169

of 1993.In the said appeal, while dealing with I.A. No. 7162 of 1999

and I.A. No. 8089 of 1999, filed by two applicants and each of them

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claiming  to  be  the  sole  legal  representative  of  the  deceased

appellant No.1 before the High Court, the High Court has allowed

both  the  applications  of  rival  contenders  and  permitted  both  of

them to raise their respective arguments in the subject matter of

pending civil suit.

2. The genesis of the case is traceable to a Suit filed by the

respondents herein against one Swami Sheo Dharmanand and two

others seeking the relief of declaration that they are trespassers and

for  consequential  relief  of  grant  of  permanent  injunction.

Consequent  to  its  dismissal,  plaintiffs—respondents  filed  First

Appeal  before  the  Sub-Judge,  Bhabhua which  was  allowed.  The

aggrieved  defendants  preferred  Second  Appeal  before  the  High

Court.  During  the  pendency  of  Second  Appeal  before  the  High

Court, one of the original defendants i.e. Swami Sheo Dharmanand

(Appellant  No.  1  before  the  High  Court)  died.  Afterwards,  the

appellants herein, filed their separate I.As. in the Second Appeal

seeking to implead themselves as actual chela and successor of the

deceased. The High Court, by its order dated 2.7.2008 remanded

the matter to the trial Court to submit a report under Order 22 Rule

5of the Code of Civil procedure, 1908 [hereinafter referred as ‘CPC’

for brevity]. The relevant portion of the order dated 2.7.2008 passed

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by the High Court reads:

“It  is necessary to determine the question of  legal representative of  deceased appellant.   Order 22 Rule 5 CPC  provides  procedure  for  determination  of  above question.  It runs as follows :-

5. Determination of  question as to  legal representative :- Where a question arises as to whether  any person is  or  is  not  the legal representative  of  a  deceased  plaintiff  or  a deceased  defendant,  such  question  shall  be determined by the Court:-

Provided  that  where  such  question  arises before  an  appellate  Court,  that  court  may, before  determining  the  question,  direct  any subordinate court to try the question and to return  the  records  together  with  evidence,  if any,  recorded  at  such trial,  its  findings  and reasons therefore, and the appellate court may take  the  same  into  consideration  in determining the question.

Thus, in view of the above provision, the matter of determination  of  legal  representative  of  deceased appellant  No.1  Sheo  Dharma  Nand  @  Deo  Shankar Tiwary  is  sent  to  the  lower  court  i.e.  Sub  Judge-I, Bhabua who will try the question and return the records to this court along with his findings and evidence, if any, within two months of receipt of this order.”

3. The  trial  Court  after  taking  into  consideration  the

relevant  issues  involved  in  the  case  both  on  factual  and  legal

aspects has given a report dated 4th December, 2008 that Swami

Satyanand Maharaj (appellant in Civil Appeal No. 6318 of 2010) is

the legal representative of the deceased and sent the report to the

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High Court. Aggrieved thereby, the applicant (appellant in C.A. No.

6319 of 2010) has filed his objections before the High Court and in

response to the same, the other applicant (appellant  in C.A.  No.

6318 of 2010) has filed counter affidavit. After hearing the parties at

length, the High Court has passed the impugned order allowing the

I.As  of  both  the  applicants  and  permitted  both  of  them  to

participate  in  the  pending  second  appeal  proceedings.   It  is

appropriate  to extract  here Paragraph 19 of  the impugned order

which is in the following terms:

“In  the  aforesaid  facts  and  circumstances,  this  Court feels it necessary and proper to dispose of all the three applications, namely, I.A. No. 7162 of 1999, I.A. No. 8089 of  1999 and I.A.  No.357 of  2005 with a direction that both  the  applicants,  namely,  Swami  Triyoganand alias Ram Narayan Prasad (applicant of IA No. 7162 of 1999) and Mahanth Satyanand alias Ramjee Singh (applicant of I.A. No. 8089 of 1999) be substituted in place of deceased appellant  No.1  Sheo  Dharmanad  alias  Deo  Shankar Tewary.  Both of them will be entitled to be represented through their respective counsel and also to raise their respective arguments with respect to the subject matter of  the  suit  at  the  time of  final  hearing  of  this  second appeal but they shall not be entitled to raise any point which  may  be  contrary  to  the  stand,  pleadings  and evidence of the original defendant-appellant No.1”.

4. Now the question that falls for our consideration in these

appeals  is  whether  the  High  Court  was  right  in  allowing  the

applications  of  both  the  rival  claimants  in  the  pending  appeal

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entitling  them to  raise  their  respective  arguments  in  the  second

appeal,  without  determining  as  to  who  is  the  actual  legal

representative of the deceased under Order 22 Rule 5 CPC.  

5. The main contention of the appellants is that the High

Court  has  committed  a  grave  error  of  law  by  allowing  both  the

impleadment applications preferred by the rival contenders staking

claim  to  be  the  genuine  legal  representatives  of  the  deceased,

without determining the question under the prescribed provisions of

law as to who is the legal representative of the deceased appellant.

The High Court’s order is not in consonance with the provisions of

Order 22 Rule 5 of CPC and it is unjust that instead of deciding the

paramount question, the High Court had simply passed the order

entitling both the contenders to raise their respective arguments in

the subject matter of Suit. The order of the High Court is perverse,

not in the interest of justice and contrary to the settled principles of

law.

6. The counsel on behalf of the respondent has argued in

support of the order passed by the High Court and submitted that

the High Court has rightly allowed both the applications by giving

opportunity to contest the appeal.

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7. Then the issue that crops up for consideration is, what is

the course to be adopted by the Court when such an applications

are filed before the Court.  

8. The procedural aspect to be followed when an application

is filed under Order 22 Rule 5, CPC is no longer res integra as this

Court in  Jaladi Suguna (deceased) through Lrs. Vs.  Satya Sai

Central  Trust  and Others, (2008)  8  SCC 521,  has  interpreted

Order 22 Rule 5 of CPC in the following terms:

“Filing an application to bring the legal  representatives on  record,  does  not  amount  to  bringing  the  legal representatives on record.  When an LR application is filed, the court should consider it and decide whether the  persons  named  therein  as  the  legal representatives,  should  be  brought  on  record  to represent  the  estate  of  the  deceased.  Until  such decision by the court, the persons claiming to be the legal representatives have no right to represent the estate of the deceased, nor prosecute or defend the case. If there is a dispute as to who is the legal representative, a decision should  be  rendered on such dispute.  Only when  the  question  of  legal  representative  is determined  by  the  court  and  such  legal representative is  brought  on record,  it  can be said that the estate of the deceased is represented.  

… … …

The  provisions  of  Rule  IV  and  V  of  Order  XXII  are mandatory.  When a respondent in an appeal dies, the court  cannot  simply  say  that  it  will  hear  all  rival claimants to the estate of the deceased respondent

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and  proceed  to  dispose  of  the  appeal.   Nor  can  it implead  all  persons  claiming  to  be  legal representatives,  as  parties  to  the  appeal  without deciding  who  will  represent  the  estate  of  the deceased and proceed to hear the appeal on merits. The court  cannot  also postpone the decision as  to who  is  the  legal  representative  of  the  deceased respondent, for being decided along with the appeal on  merits.   The  Code  clearly  provides  that  where  a question arises as to whether any person is or is not the legal  representative  of  a  deceased  respondent,  such question shall be determined by the court.

… … …

Though  Rule  V  does  not  specifically  provide  that determination of legal representative should precede the hearing of the appeal on merits,  Rule 4 read with Rule 11 makes it clear that the appeal can be heard only after the legal representatives are brought on record”.

(emphasis supplied)

9. Perceiving the present case in the above framework, the

High  Court,  after  noticing  that  two  individual  applicants  have

claimed  to  be  the  chelas  of  the  deceased  Mahanth  and  were

contending to be his legal representatives, has rightly by an order

dated 2nd July, 2008 referred the matter to the Subordinate Judge,

Bhabhua  for  determination  under  Order  22  Rule  5  of  CPC.

Accordingly, the trial Court decided the question and sent back the

matter with its report dated 4th December, 2008. Before the High

Court, the rival contender has filed an objection and in response to

the  same,  the  other  applicant  has  filed  his  counter  affidavit.

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Thereafter,  the  High  Court,  instead  of  deciding  on  merits  the

question  of  legal  representative  of  the  deceased  out  of  the  two

contenders, has simply substituted both the contenders in the place

of the deceased appellant before it.

10. Apparently,  the  issue  of  bringing  on  record  the  legal

representative in a pending appeal has to be dealt with in a manner

prescribed  under  the  provisions  of  Order  22  Rule  5.  From  the

context of the settled legal position, it is clear that when a question

arises before the Court in a pending matter as to who will come on

record as  the legal  heir  of  the deceased,  the  Court  shall,  before

proceeding to  decide  with the substantive  issues  involved in  the

case, first and foremost, shall decide who is the legal representative

of the deceased. It is also well settled that when a party dies at the

stage of second appeal and there are rival contenders claiming to be

the legal representatives of  the deceased, as in the present case,

there is a burden cast upon the Court to first decide as to who is

the  legal  representative  of  the  deceased.  Without  doing  so,  the

Court cannot proceed with the disposal of the case on hand. At the

same time, the Court cannot make all the contenders as parties.

The  aspect  of  deciding  legal  representative  cannot  also  be

postponed  with  a  view  to  decide  the  same  at  the  time  of  final

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disposal of the appeal on merits. It is significant that the statute

has  clearly  mandated  that  if  the  question  of  deciding  the  legal

representative of a legatee arises before an appellate Court, it may

direct the subordinate Court to make enquiries by leading evidence

if any through the process of trial and record its finding as to who is

the legal representative. After considering the finding recorded by

the trial Court, the appellate Court can decide and bring on record

the legal representative of the deceased.

11. It is indisputable that the procedural laws are meant to

advance justice. A procedure contemplated under the code which is

mandatory in nature shall not be skipped or ignored by the Courts.

Whereas, in the instant case, the High Court’s approach has diluted

the purport of Order 22 Rule 5 of the CPC and is contrary to the law

laid  down  by  this  Court  in  Jaladi  Suguna (supra).  Such  an

approach of the High Court cannot be sustained.

12. Although we are apprised of  the fact that alleged legal

representatives  relying  on  certain  customs  to  prove  whether  a

Grihastya could be a Guru under the relevant sampradaya. We need

not concern our self with the aforesaid findings on merit given by

the trial court at this stage. It is for the High Court to consider the

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aforesaid  report  of  the  trial  Court  and  determine  the  disputed

question  of  fact.  It  may  not  be  out  of  context  to  note  that  the

determination  under  Order  XXII  Rule  5  of  CPC  is  summary  in

nature and for limited purpose. Order passed on the impleadment

applications, determining a particular person as legal representative

has no effect of final decision or operates as  res-judicata between

the legal representatives as to the question of who should ascend as

Guru. At the cost of repetition, we may note that the determination

by  the  High Court  would  be  limited  to  the  question,  as  to  who

should  be  brought  on  record  in  the  place  of  deceased  for  the

purposes of continuing the suit alone, and nothing beyond that.

13. In view of the foregoing reasons, we set aside the order of

the High Court and remit the matter back to the High Court for

determining the issue as per the provisions of Order 22 Rule 5. The

High Court shall  decide the question on merits as to who is the

legal representative of the deceased Swami Sheo Dharmanand on

the basis of the reports submitted by the trial Court and also taking

into account any objections or material which the parties rely upon.

Only thereafter, the High Court shall proceed with the hearing of

second appeal. We request the High Court to take up the matter as

early  as  possible  and  dispose  of  the  same  expeditiously  in

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accordance with law.

14. Before parting with the appeals, we make it clear that we

have  not  expressed  any  opinion  on  the  merits  of  the  case.  Any

observation made by us in this judgment should not be construed

as an expression of this Court and the High Court has to deal with

the same in accordance with the provisions of law.

15. The  appeals  are  allowed  in  the  above  terms.

Consequently, all the pending applications, if any, shall also stand

disposed of. No costs.

           ..............................J.       (N.V. RAMANA)

      .............................J.                                  (S. ABDUL NAZEER)

New Delhi, February 8, 2018