DASHRATH RAO KATE versus BRIJ MOHAN SRIVASTAVA

Citation: [2009] 15 S.C.R. 643 · Decided: 03-11-2009 · Supreme Court of India · Bench: MARKANDEY KATJU, V.S. SIRPURKAR · Disposal: Appeal(s) allowed

Cited by 1 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

[2009] 15 (ADDL.) S.C.R. 643 
DASHRATH RAO KATE 
A 
-
f 
v. 
BRIJ MOHAN SRIVASTAVA 
(Civil Appeal No.1621 of 2004) 
NOVEMBER 03, 2009 
B 
[MARKANDEY KAT JU AND V.5. SIRPURKAR, JJ.] 
l 
Code of Civil Procedure, 1908- Or.22, r.5 - Eviction suit 
-
Original owner died - Appellant filed application for 
impleadment as LR of original owner on basis of Will c 
executed by her - Application allowed - Respondent-tenant 
filed Revision - High Court remanded the case to trial Court 
\_ 
with direction to determine and substitute the legal heir of 
original owner - Full-fledged inquiry conducted by trial Court 
under Or. 22, r. 5, whereafter said Will held proved and D 
't 
appellant brought on record as LR of original owner - Order 
____ ,.-
not challenged - Parties thereafter led evidence and trial court 
. 
decreed the eviction suit on ground contemplated u/s.12(1)(c) 
and 12(1)(e) of the Act-Order upheld in appeal - High Court, 
- however, set aside eviction order holding that inquiry under E 
Or. 22, r. 5 was of summary nature and limited only to 
determination of right of appellant to be impleaded as LR of 
... 
original owner, hence, any finding in that inquiry was not 
> 
binding on respondent at final stage of suit and appellant was 
required to again prove the Will in order to establish his F 
ownership - Whether appellant had to lead fresh evidence all 
over again to prove his status on basis of Will, which was held 
proved in enquiry under Or.22, r.5 - Held, No - Once the Will 
was held proved, and in the same suit, further evidence was 
led, there was no point on part of appellant to repeat all his G 
evidence all over again - The question was finally decided 
"' 
_. 
under Or. 22 r. 5 and in the same suit, it could not be re-
agitated - Moreover, respondent could not have challenged 
the Will at all as he was an utter outsider and had no interest 
643 
H 
644 
SUPREME COURT REPORTS [2009] 15 (ADDL.) S.C.R. 
A 
in the property as the owner - M.P. Accommodation Control 
""" 
Act - s.12(1)(c) and (e). 
In an eviction suit under M.P. Accommodation 
Control Act, appellant filed application for impleadment 
B 
as legal representative of 'S', the original owner of the 
house, who had since deceased, on basis of a Will 
executed by her. The application was allowed. Against 
the impleadment, respondent-tenant filed Revision, on 
{. 
which the High Court remanded the case to trial Court 
c with direction to determine and substitute the legal heir 
of 'S'. 
Full-fledged inquiry was conducted by trial Court 
under Or. 22, r.5, CPC, whereafter the said Will was held 
to be proved and the appellant was brought on record 
D as legal representative of '5'. The order was not 
challenged and it became final. The parties thereafter led 
1 
evidence and the Trial Court decreed the eviction suit on 
_I 
ground contemplated under Sections 12(1)(c) and 12(1)(e) 
of the M.P. Accommodation Control Act. The order was 
E 
upheld in appeal. 
On second appeal, the High Court set aside the 
eviction order holding that inquiry under Or.22, r.5, CPC 
was of the summary nature and was limited only to the 
l 
F 
determination of the right of appellant to be impleaded as 
the legal representative of 'S', hence, any finding in that 
inquiry was not binding on respondent at final stage of 
the suit and appellant was required to again prove the Will 
in order to establish his ownership. Hence the present 
G 
appeal. 
Allowing the appeal, the Court 
HELD: 1.1. The view of the High Court that the Will 
had to be proved again, is incorrect. Normally, an enquiry 
H 
DASHRATH RAO KATE v. BRIJ MOHAN SRIVASTAVA645 
under Or.22 r.5, CPC is of a summary nature and findings 
A 
... 
). 
therein cannot amount to res judicata, however, that legal 
position is true only in respect of those parties, who set 
up a rival claim against the legatee. [Paras 15 and 16) 
[656-A-C] 
1.2. In the present case, when the question regarding 
B 
the Will was gone into in a detailed enquiry, where the 
evidence was recorded not only of the appellant, but also 
of the attesting witness of the Will and where these 
witnesses were thoroughly cross-examined and where c 
the respondent also examined himself and tried to prove 
that the Will was a false document and it was held that 
he had utterly failed in proving that the document was 
false, particularly because the document was fully proved 
by the appellant and his attesting witness, it would be 
D 
futile to expect the witness t

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