Order 22 Rule 5 CPC | Final Decision On Question Of Legal Representative Has To Be Taken By Appellate Court After Considering The Report Of Subordinate Court: SC
The Supreme Court ruled that under Order 22 Rule 5 CPC appellate Court can direct the subordinate Court to decide the question of legal representative but the final decision has to be made by the Court itself.
The bench of Justice A.S.Bopanna and Justice Sudhanshu Dhulia observed, “Proviso to Rule 5 does not say that the Appellate Court can direct the subordinate court to decide the question as to who would be the legal representative, it only provides that the Appellate Court can direct the subordinate court to try the question and return the records to the Appellate Court, along with the evidence and the subordinate court has then to send a report in the form of a reasoned opinion based on evidence recorded, upon which the final decision has to be made ultimately by the Appellate Court, after considering all relevant material.”
Brief Facts-
Swami Shivdharmanand was sued in a property dispute. After his death, two claimants sought substitution in his place. The High Court initially allowed both but later, after the Supreme Court order, upheld Swami Satyanand as the legal representative. Another claimant, Swami Triyoganand, passed away before his substitution could be done. Swami Vedvyasanand, the successor to Swami Triyoganand, sought substitution, but the High Court rejected his application, citing the previous finding. Now, Sadhavi Sarojanand, claiming to be Swami Vedvyasanand's legal heir, seeks substitution in the pending appeal.
The Court stated that the High Court while substituting Swami Satyanand as the appellant and dismissing the claim of the appellant’s predecessor-in-interest i.e., Swami Triyoganand did not follow the correct procedure.
According to the Court, the High Court misread Rule 5 as well as the Supreme Court order, as it failed to consider the objections against the Trial Court report while making its determination on substitution.
The Court noted that proviso to Order 22 Rule 5 is only an enabling provision where the appellate court may before deciding the question of whether a person is the legal heir of the deceased plaintiff or defendant refer the matter to a subordinate court to try and record its findings which may be considered by the Appellate Court while taking a final call on the issue.
The Court stated that while dealing with the report sent by the subordinate court under Order 22 Rule 5 of CPC, the Appellate Court may consider the findings of the subordinate court and then give its reasons before reaching any conclusion.
“The words ‘the Appellate Court may take the same into consideration in determining the question’ used in the proviso to Rule 5 gives discretion to the Appellate Court to make its own separate opinion notwithstanding the opinion of the subordinate court. The proviso cannot be construed to be a delegation of the powers of the Appellate Court to substitute the deceased party, but is merely to assist it in ultimately deciding the issue of substitution.” Court observed.
According to the Court, the Appellate Court ‘may’ take into consideration the material referred by the subordinate court under Rule 5 of Order 22, CPC along with the objections, if any, against the report while deciding on the substitution of the appellant.
The division bench remitted the matter back to the High Court for a fresh decision on substitution.
Finally, the Court disposed of the appeals.
Cause Title: Swami Vedvyasanand Ji Maharaj v. Shyam Lal Chauhan (Neutral Citation: 2024 INSC 352)