Madhya Pradesh High Court: In a miscellaneous petition filed under Article 227 of the Constitution against the order passed by the Civil Judge wherein the petitioner’s application (‘the application’) under Order 22 Rule 3 read with Section 151 of the Code of Civil Procedure, 1908 (‘CPC’), was rejected, the Single Judge Bench of Hirdesh, J., allowed the petition, holding that since the Civil Court committed an error in dismissing the application and set aside the impugned order while directing the petitioner’s impleadment as the original plaintiff.
Background
The original plaintiff (since deceased) filed a civil suit for declaration, partition, and permanent injunction in respect of a disputed agricultural land, inter alia, pleading that, as the daughter of her late parent, she was entitled to her 1/3rd share in the disputed property by metes and bounds. During her lifetime, the deceased original plaintiff executed a will in 2024 in respect of all movable and immovable properties in favour of her late husband and children.
After her death, the present petitioner, her son, filed the application along with her death certificate seeking substitution of his name in her place as the plaintiff, inter alia stating that the will was executed by the deceased original plaintiff in his favour regarding 1/3rd share of the disputed property and, therefore, the right to sue survived in his favour.
The Civil Court, vide the impugned order, rejected the application, holding that in addition to the petitioner, the deceased original plaintiff had other legal heirs too, as mentioned in the will, whose names were not mentioned in the application.
Aggrieved, the petitioner filed the present petition.
Analysis
On perusal of the impugned order, the Court found that the Civil Court rejected the application solely on the ground that there were other legal heirs of the deceased original plaintiff, apart from the petitioner, in the will.
In this regard, the Court placed reliance on Shakuntala (Mst) v. Shatrughan1, wherein it was held by a Co-ordinate Division Bench that after the death of the original plaintiff, the holder of the ‘will’ may be substituted in place of the deceased plaintiff, because he represents the estate of the deceased and no further enquiry was necessary. It was further held that the term ‘legal representative’ was defined in Section 2(11) of the CPC to mean a person who in law represents the estate of a deceased person, and includes any person who inter-meddles with estate of the deceased and where a party sues or is sued in a representative character the person on whom the estate devolves on the death of the party so suing or sued.
The Court also placed reliance on Dolai Maliko v. Krushna Chandra Patnaik 1966 SCC OnLine SC 152, wherein it was held that in an application under Order 22 Rule 3 of the CPC, there is no question of any diligent or bona fide enquiry, for the deceased appellant’s heirs must be known to the heirs who applied for being brought on the record. Even so unless there is fraud or collusion or there are other circumstances which indicate that there has not been a fair or real trial or that against the absent heir there was a special case which was not and could not be tried in the proceeding, there is no reason why the heirs who have applied for being brought on record should not be held to represent the entire estate including the interests of the heirs not brought on the record.
Given the aforementioned cases, the Court opined that in the present case, the respondents had not stated that the will was executed by means of fraud or collusion. Hence, based on the will executed by the deceased original plaintiff, the petitioner’s name shall be substituted in place of the deceased.
Thus, the Court held that the Civil Court committed an error in rejecting the application and set aside the impugned order, thereby directing impleadment of the petitioner as the original plaintiff.
The Court also remarked that when the Civil Court rejected the application and no plaintiff was surviving to continue the suit, then the suit ought to have been rejected as abated, but the Civil Court fixed the case for the plaintiff’s evidence.
“It is crystal clear that the Presiding Officer of Civil Court has no basic knowledge of law and she needs training at the Judicial Officers Training and Research Institute (‘JOTRI’) regarding procedural law.”
In this regard, the Court directed that a copy of this order be forwarded to the District Judge concerned, the Director of JOTRI, and the Registrar General of the High Court, Jabalpur.
[Pawan Pathak v. Nathuram, Misc. Petition No. 440 of 2025, decided on 29-08-2025]
Advocates who appeared in this case:
For the petitioner: Advocates Anil Kumar Shrivastava, Pratika Pathak, and Rajiv Raghuvanshi
For the respondent: Advocates Tara Chandra Narwariya, Dhirendra Singh Chouhan, and Govt. Advocate Man Singh Jadon
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1. 1993 (2) MPWN 99
