Holding

A Will proved in an inquiry under Order 22 Rule 5, CPC, is conclusive for the same suit and need not be re‑proved, and an outsider tenant cannot challenge its validity.

Summary

In an eviction suit under the Madhya Pradesh Accommodation Control Act, the appellant Dashrath Rao Kate sought to be impleaded as the legal representative of the deceased owner Sukhiabai on the basis of a Will. The trial court, after a full inquiry under Order 22 Rule 5 of the CPC, held the Will proved and allowed the impleadment. The trial court then decreed eviction under Sections 12(1)(c) and 12(1)(e) of the Act, a decision upheld by the appellate court. The High Court, on revision, held that the Will had to be proved again in the main suit because the Order 22 inquiry was merely summary and not binding. The Supreme Court rejected this view, holding that once a Will is proved in an Order 22 Rule 5 inquiry, the finding is conclusive for the same suit and the appellant need not relitigate the Will, especially as the tenant had no standing to challenge it. Consequently, the Supreme Court allowed the appeal, restored the lower courts' judgments, and awarded costs to the appellant.

Issues considered

Whether findings of an inquiry under Order 22 Rule 5, CPC, regarding the proof of a Will, are binding on the parties for the main suit.
Whether the appellant must re‑prove the Will in the substantive eviction suit after it has been proved in the Order 22 inquiry.
Whether a tenant‑respondent, as an outsider, can challenge the validity of the Will.
Whether Sections 12(1)(c) and 12(1)(e) of the Madhya Pradesh Accommodation Control Act are applicable where the plaintiff’s title is based on a Will.

Legislation cited

Code of Civil Procedure, 1908s. Order 22 Rule 5, s. Section 47

Subjects

evictionOrder 22 Rule 5Willlegal representativeM.P. Accommodation Control Actres judicatasummary inquirylandlord‑tenant

Judgment

[2009] 15 (ADDL.) S.C.R. 643

- f
DASHRATH RAO KATE
v.
BRIJ MOHAN SRIVASTAVA
A

(Civil Appeal No.1621 of 2004)
NOVEMBER 03, 2009
B
[MARKANDEY KATJU 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
appellant brought on record as LR of original owner - Order
't
____,.- 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
with direction to determine and substitute the legal heir
c 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
determination of the right of appellant to be impleaded as
F 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
appeal.
G
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]
B
1.2. In the present case, when the question regarding
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
the respondent also examined himself and tried to prove
c
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
futile to expect the witness to lead that evidence again D
in the main suit. [Para 16) [656-E-G]
... )-
1.3. It was at the instance of the High Court in the
revisional jurisdiction that the direction was given that
the Trial Court should first decide as to who could be the E
legal representative of 'S' and after complete enquiry, the •
Trial Court held the Will to be proved. The Will was not
only attacked by the appellant on its proof, but also on
... - >.
r
merits, inasmuch as the respondent went on to contend
before the Trial Court during that enquiry that the Will F
was unnatural, unfair and was executed in doubtful
circumstances. The Trial Court, however, rejected this
contention. On the other hand, the Trial Court found on
).
merits that the appellant was living with 'S' and she had
adopted him orally. [Para 16) [656-G-H; 657-A-B]
G
1.4. Clear cut findings were given by the High Court
.... ~
that from the evidence of PW-2, the attesting witness, it
was clear that 'S' had signed in his presence and he had
also signed in presence of 'S' and had also seen the other
attesting witness signing the Will and attesting the same. H
646 SUPREME COURT REPORTS [2009] 15 -(ADDL.) S.C.R.

A Not only this, but the Trial Court also wrote a finding that
the objection raised b,y the respondent that 'S' was not ~
....,.
in a position to understand the Will· on account of her
. poor physical condition, waS' ~lso rejected by the Trial
Court. U was also noted that the Will was executed six
B years prior to her death and as such, there was no
question of 'S' being suffered with any mental or physical
disability for executing the Will. Therefore, it is on this
basis that the Will was held to be proved. Once this was
the position and in the same suit, the further evidence was ·~

c led, there was no point on the part of the appellant to
repeat all this evidence all over again. [Para 17] [657-C-
F]

1.5. On evidence in the present case, the respondent
did not do anything and did not even challenge the
D evidence of the appellant that he had become owner of
the Will. Merely because· the evidence of respondent and
PW-2 was not repeated all over again, it cannot be held
that the appellant could be non-suited on this ground.
[Para 17] [658-B-C]
i
---
E
1.6. The question regarding the appellant's right to
represent was closed. There could be a second suit,
questioning his entitlement on the basis of Will, but, there
is no such challenge by anybody to his status as a <
A
F
legatee of 'S'. Insofar as the suit in the present case is
concerned, the question was finally decided under Order •
22 Rule 5, CPC and in the same suit, it could not be re-
agitated. Obviously, the impugned judgment is incorrect
when it holds that the appellant/plaintiff had to lead fresh
evidence all over again to prove his status on the basis
G
of the Will, which was held to be proved in the enquiry
under Or.22, r.5, CPC. [Para 18] [660-E-G] ....,
~

1.7. Moreover, the tenant-respondent could not have
challenged the Will at all. He was an utter outsider and
H had no interest in the property as owner. Indeed, from the
DASHRATH RAO KATE v. BRIJ MOHAN SRIVASTAVA 647

, pleadings and evidence, it is clear that tenant-respondent A
_.... f has not even ventured to claim any rival interest against
the appellant. [Para 19] [660-G-H; 661-A]

Suraj Mani & Anr. vs. Kishori Lal AIR 1976 HP 74;
Vijayalakshmi Jayaram vs. M.R. Parasuram AIR 1995 A.P.
8
351 and Mohinder Kaur & Anr. vs. Piara Singh & Ors. AIR
1931 Punjab & Haryana 130, distinguished.

Kalyanmal Mills Ltd., Indore vs. Voli Mohammed AIR
I
~
1965 MP 72; Raghnath Singh Anar Singh vs. Gangabai (D)
~ thr. L.R. Bhuwan Singh AIR 1961 MPLJ 398; Mahendra c
Dhapu & Ors. vs. Ram Avtar & Ors. 1923 AIR Nagpur 209;
Girja Dutt Singh vs. Gangotri Datt Singh AIR 1955 SC 346;
Shaligram Bhagoo Kunbi & Anr. vs. Mt. Dhurpati W/o
Shamrao Kunbi AIR 1939 Nagpur 147; Tarachand vs. Mt.
Janki AIR 1916 Nag. 89; Raoji Bhikaji vs. Anant Laxman D
1918 (5) AIR Born 175; Raj Bahadur vs. Narayan Prasad
~ 1926 (13) AIR All. 439 and Antu Rai vs. Ram Kinkar Rai 1936
... (23) AIR All. 412, referred to .
---#
Case Law Reference :
E
AIR 1976 HP 74 distinguished Para 7

-- ~
AIR 1965 MP 72
AIR 1961 MPLJ 398
1923 AIR Nagpur 209
referred to
referred to
referred to
Para 7
Para 7
Para 14
F

AIR 1955 SC 346 referred to Para 16
AIR 1995 A.P. 351 distinguished Para 18
AIR 1931 P & H 130 distinguished Para 18 G

, ... + AIR 1939 Nagpur 147 referred to Para 18
AIR 1916 Nag. 89 referred to Para 18

H
~
(
648 SUPREME COURT REPORTS [2009] 15 (ADDL.) S.C.R.

A 1918 (5) AIR Bom 175 referred to Para 18
1926 (13) AIR All. 439 referred to Para 18
1936 (23) AIR .All. 412 referred to Para 18

CIVIL APPELLATE JURISDICTION : Civil Appeal No.
B
1621 of 2004.

From the Judgment & Order dated 04.10.2002 of the High
Court of Madhya Pradesh Bench at Gwalior ir,i Civil Second
Appeal No. 390 of 1998. ·
c
Avneesh Garg, Anshul Singh, Ashok K. Mahajan, for the
Appellant.

Jagjit Singh Chhabra, Lakhan Singh Chauhan, Dr. Kailash
Chand, for the Respondents.
0
The Judgment of the Court was delivered by

V.S. SIRPURKAR, J. 1. The judgment of the High Court,
allowing the Second Appeal is in challenge by way of this
E Appeal. The Second Appeal was filed by the respondent/
defendant challenging the judgment of the Appellate Court,
whereby the Appellate Court had confirmed the decree passed
by the Trial Court.

The High Court framed two questions of law, they were:
F
"(1) Whether the Court below erred in law in treating the
finding recorded in the proceedings under Order
XXll Rule 5, CPC to be binding and omitting to
decide the question in regard to the locus standi
G and entitlement of the plaintiff on merits considering
the specific pleas urged by the defendant in the
written statement subsequent to the substitution of
the new plaintiff? and;

H
DASHRATH RAO KATE v. BRIJ MOHAN 649
SRIVASTAVA [V.S. SIRPURKAR, J.]

(2) Whether the Court below erred in law in granting a A
decree on the basis of the ground contemplated
under Section 12 (1) (c) of the M.P.
Accommodation Control Act even though the
alleged disclaimer could not be taken to be anterior
to the filing of the suit?" B

2. Two other substantial questions proposed by the
appellant (respondent herein) before the High Court by the
respondent herein were:
J

"(1) Whether the defence contained in the written C
statement did constitute a ground under Section 12
(1) (c) of the M.P. Accommodation Control Act?

(2) Whether the ground under Section 12 (1) (c) is
available to a derivative title holder?" o
..•
\
)-
3. The High Court, however, took into consideration the
first question of law and held that if that question of law was
answered in favour of the appellant (respondent herein), then
the Second Appeal would have to be allowed in favour of the
tenant-respondent. It is only on that ground that the appeal came E
to be allowed. In paragraph 7 of the impunged judgment, the
High Court expressed that the gist of the first question was
whether the evidence recorded by the Court below before
allowing the application under Order 22 Rule 5 of the Code of
Civil Procedure (hereinafter referred to as 'CPC', for short) F
could be looked into also for passing a final decree against the
appellant-defendant (respondent herein). It, however, observed
that if that evidence was ignored, then the plaintiff (appellant
herein) had not led any evidence to show that he had locus
standi to continue the suit. G

4. Few facts would have to be considered. Sukhiabai
[sometimes referred to as Sankhyabai] who was the sister of
the grandfather of the appellant/plaintiff, owned the house. She
was issueless and the appellant/plaintiff was brought up by H
650 SUPREME COURT REPORTS [2009) 15 (ADDL.) S.C.R.

A S,ukhiabai and was living with her. The house in dispute was
l~t out to the respondent herein as a monthly tenant and a
written reht note was executed for that purpose. An application
came to be filed initially in the year 1990 vide case No. 125/
84-85/90-7 before the Rent Control Authority for eviction
B against the present respondent. That eviction application was
allowed by the Rent Control Authority and hence a Revision
came to be filed vide C.R.No.198/96 in the High Court. It was
during the pendency of this Revision that Sukhiabai died. The
respondent impleaded one Arun and Ramesh claiming
c themselves to be class I heirs of Sukhiabai and eventually the
Revision was allowed by the High Court and the High Court
remanded the case to the Civil Court and directed that the
questions as to whether intervention could be sought on the
basis of the Will and as to whether the respondent was entitled
to continue the suit, would have to be gone into by the Trial
0
Court. Upon remand, the suit was numbered as 119-A/96
before the Civil Judge, Gwalior. The appellant/plaintiff moved
an application for amendment of the plaint and that amendment
was allowed. Against that, the present respondent filed Civil
Revision No.91/97, while deciding which, the High Court
E directed that the question of legal representative of deceased
Sukhiabai had to be determined first and after determining the
rights of legal representative, a proper party has to be
impleaded as the legal representative and the party so
impleaded as legal representative would alone have the right
F to amend the plaint.

5. The present appellant then filed an application to bring
himself as the legal representative on record on the basis of
the Will which was executed by Sukhiabai in his favour on
G 26.03.1990. The appellant/plaintiff examined one Prabhakar
Rao as PW-2 on 01.09.1997. After due inquiry, the application
of the present appellant was allowed by the Trial Court and that
is how the present appellant was brought on record in place of
Sukhiabai. This order was not challenged and it became final.
H
DASHRATH RAO KATE v. BRIJ MOHAN 651
SRIVASTAVA [V.S. SIRPURKAR, J.]
---"'(.

6. The parties thereafter led evidence and on that basis A
f the Trial Court decreed the. suit by its judgment dated
22. 01 :1998. That was challenged by way of an appeal before
the Additional District Judge, Gwalior, who dismissed the
appeal by judgment dated 15.05.1998. These concurrent
findings thereafter were challenges before the High Court and B
the High Court has upset the concurrent findings and has
proceeded to dismiss the suit. It is this judgment which has
fallen for our consideration.
_)
7. It is clear from the findings of the Trial Court and
Appellate Court that the suit has been allowed on the ground
c
of Sections 12 (1) (c) and 12 (1) (e) of the M.P.
Accommodation Control Act. The High Court has accepted the
arguments of the respondent herein that in spite of the fact that
'f
I
the appellant/plaintiff was brought on record as legal
representative of Sukhiabai on the basis of the Will, yet he D
should have led more evidence to prove the Will in ord~r to
~ prove that he had become owner on the basis of the
testamentary succession of the concerned house. In short, the
High Court came to the conclusion that since the inquiry under
Order 22 Rule 5, CPC was of the summary nature and was E
limited only to the determination of the right of the appellant
herein to be impleaded as the legal representative of
Sukhiabai, any finding given in that inquiry would not be binding
:- on the defendant (respondent herein) at the final stage of the
)._
...... suit and the plaintiff (appellant herein) would have to again F
prove the Will in order to establish his ownership vis-a-vis the
concerned premises. The High Court went on to hold that since
the title of the plaintiff (present appellant) was based on the Will
and it was disputed by the defendant (present respondent),
therefore, the appellant/plaintiff had to independently prove his G
title. For that purpose the evidence led at the time of inquiry
~ _) under Order 22 Rule 5, CPC would be of no consequence. The
High Court then relied upon on the law laid down in Suraj Mani
& Anr. vs. Kishori Lal [AIR 1976 HP 74], wherein it was
observed that the evidence recorded during the inquiry under H
652 SUPREME COURT REPORTS [2009] 15 (ADDL.) S.C.R.

.)
A Order 22 Rule 5, CPC could not be equated with the evidence
recorded at the time of decision on merits. Another judgment
relied upon was Kalyanma/ Mills Ltd., Indore vs. Voli
.
Mohammed [ATR 1965 MP 72]. The third decision relied and .
l

followed by the High Court was Raghnath Singh Anar Singh
B vs. Gangabai (DJ thr. L.R. Bhuwan Singh [AIR 1961 MPLJ
398]. The High Court then proceeded to reject the argument
on behalf of the appellant/plaintiff that this was only a suit for
the ejectment under the M.P. Accommodation Control Act and
the respondent/defendant being an outsider could not have ....
c challenged the validity of the partition. On merits, all that was
required to be seen was as to whether the appellant herein had
been properly brought on record as legal representative of
Sukhiabai and if that was so, there was no question of non-
suiting the appellant/plaintiff on the basis that the Will was n9t
proved independently. The High Court also went on to record ,>
D
a finding that the appellant herein was not a family member of
Suktliabai as she was not survived by any class I heir. In short,
the High Court held that the Will was not proved independently, ~
;.
though on its basis, the appellant/plaintiff was allowed to be
brought as a legal representative of Sukhiabai, and proceeded
E to dismiss the suit.

8. We are unable to agree with the reasoning of the High
Court.
<
,\:
F 9. It is an admitted position that when the Civil Revision
was pending before the High Court at the instance of the tenant- ...
respondent, it was filed initially only against one Ramesh and
Arun Kate, since Sukhiabai had already died after the order
passed in her favour. That Civil Revision was allowed by the
High Court and the High Court directed to convert the matter
G
into a suit under M.P. Accommodation Control Act. That is how
the. original application for eviction was transferred to the Civil . .._,
~
Court for hearing. It was before the Civil Court that the present
appellant filed an application for being impleaded and the same
was allowed without any investigation. The said impleadment
H
DASHRATH RAO KATE v. BRIJ MOHAN 653
SRIVASTAVA [V.S. SIRPURKAR, J.]

was claimed on the basis of a will by Sukhiabai in favour of A
the appellant. In the Revision No. 91 of 1997 against this
impleadment, the High Court directed the Trial Court to decide
as to who is the legal heir of Sukhiabai and to substitute such
a person as legal heir. In pursuance of that, a full fledged inquiry
was conducted by the Trial Court, wherein three witnesses 8
came to be examined by the present appellant to establish the
will. In that enquiry, the Trial Court framed a question whether
)
will was written by Sukhiabai and whether on the basis of the
said will, appellant Dashrath Rao was her legal representative
in this case. One Prabhakar Rao (PW-2) and Ganpat Rao were c
witnesses on the original will (Exhibit P-1). Ganpat Rao has
expired. Besides himself, the appellant/plaintiff examined said
Prabhakar Rao (PW-2) and got the will proved. Prabhakar Rao
(PW-2) fully supported the case of the appellant in respect of
the will. It is noteworthy that both, appellant and said Prabhakar D
Rao, were extensively cross-examined. Not only this, but the
other person Ramesh Kate, who was joined as the legal
representative of Sukhiabai in the first Revision, was also got
examined by the appellant, who claimed clearly that he had no
interest in the property and in fact, the suit house was
E
bequeathed by Sukhiabai in favour of the appellant.

10. The respondent/defendant also examined himself and
according to him, the signatures on the will was not that of
• Sukhiabai. After considering the evidence fully and in details,
the Trial Court, by its order dated 9.9.1997, gave a declaration F
that present appellant Dashrath Rao was the legal
representative of Sukhiabai in the case. The Trial Court also
clarified that the order was only for the purpose of bringing legal
representatives on record. Obviously it was under Order 22 Rule
5, CPC. It is noteworthy that this order is not further challenged G
. _J
by the tenant-respondent.

11 . It was thereafter that the appellant/plaintiff made
amendments and claimed himself to be the owner of the house
in question. He also pointed out that the respondent/defendant
H
654 SUPREME COURT REPORTS [2009] 15 (ADDL.) S.C.R.
• >

A was a tenant at a monthly rent of Rs.170/- of the whole house,
but later on, the respondent/defendant had vacated one room
of his tenancy and handed over it to Sukhiabai and retained 2
t -
rooms and bathroom and the rent was fixed at Rs.130/- per
month. He also pointed out that tenant had not paid any rent ;i
8 from 1.1.1994. He also reiterated his relationship with
Sukhiabai and the facts regarding the will, as also his bonafide
personal need of the rented premises.

12. In his written statement, the tenant-respondent admitted
Sukhiabai to be his landlady and also accepted about the rent
c note dated 10.2.1980. He also again denied that the appellant/
plaintiff had become owner and also denied his need. On that
basis, issues came to be framed, which are as under:-

(i) Whether there is relation of land lord and tenant
D between plaintiff and the defendant?

(ii) Whether the defendant has not paid/cleared
outstanding rent from 1.1. 1984 to the plaintiff?

(iii) Whether the plaintiff is in genuine need of the suit
E accommodation for his own residential purpose?

(iv) Relief and Costs?
\.
13. The evidence was again led by the appellant, wherein )
he asserted that the respondent/defendant was the tenant of
F
Sukhiabai and that he had become his tenant now as per the
will, since he has become owner on the basis of the will. 'He
also reiterated the will (Exhibit P-1 ), regarding which Court had
given decision in the enquiry under Order 22 Rule 5 CPC. He
then deposed about his need. We have seen the cross-
G examination of this witness by the respondent/defendant, which
is lengthy cross-examination and very strangely, we find not a > ..
single relevant question asked to him about the will. He was
cross-examined mainly as regards his need. In para 18, a stray
suggestion was given that Sukhiabai had not executed the will
H

•
DASHRATH RAO KATE v. BRIJ MOHAN 655
SRIVASTAVA [V.S. SIRPURKAR, J.]

in his favour and that he had manipulated to prepare fraudulent A
"' will. The appellant reiterated that the will was not only executed,
but the Court has accepted it. Beyond this, there is nothing in
the cross-examination. The respondent/defendant also
examined himself and in his evidence also, in para 4, he
reiterated that the will shown was forged. He was specifically B
asked in his cross-examination and he had to admit that he had
filed no Revision against the order dated 9.9.1997, by which
the Will was held proved, though he asserted that he was going
)
to file the same. It was on this basis that the Trial Court held all
the issues in favour of the appellant. c
14. Before the first Appellate Court, again it was reiterated
by the tenant-respondent (appellant therein) that the Trial Court
had committed an error in holding the appellant/plaintiff to be
the heir of the suit house. Some judgments were cited in
support of this contention, they being Mahendra Dhapu & Ors. D
vs. Ram Avtar & Ors. [1923 AIR Nagpur 209], Kalyanmal Mills
Ltd., Indore vs. Voli Mohammad & Ors. [1965 AIR M.P. 72],
Raghunath Singh vs. Ganga Basai [1961 M.P.L.J. 398],
Surajmal & Ors. vs. Kishori Lal, [1976 AIR H.P. 74]. The
Appellate Court distinguished all these decisions on the factual E
aspects and held that the Will (Exhibit P-1) was proved by the
evidence of the appellant/plaintiff, as also the attesting witness.
~ It was also pointed out that the Will was not disputed by
~ anybody else, muchless even the interested persons. On the
other hand, they had supported the Will. The Appellate Court F
came to the conclusion that in that view, the tenant could not
be allowed to raise question on the legality of the title of the
appellant herein. The Appellate Court thereafter considered the
matter on merits regarding the bonafide need of the appellant
and held it to be proved. The Appellate Court further went on G
to hold that since the tenant had challenged the title of the
---~ :,j
landlord, i.e., the appellant during the pendency of the eviction
petition, the landlord became entitled under Section 12(1)(c)
to get the decree of eviction. It is on this basis that the appeal
came to be dismissed. H
I
L
656 SUPREME COURT REPORTS [2009] 15 (ADDL.) S.C.R.

A 15. The High Court, however, took the view that the Will ....,
-~
had to be proved all over again, though it was held proved
earlier in the enquiry under Order 22 Rule 5, CPC. We have
already earlier referred to the findings of the High Court. In our \

view, the view of the High Court that the Will had to be proved
B again, is incorrect. .
\

16. As a legal position, it cannot be disputed thatnorrnally,
an enquiry under Order 22 Rule 5, CPC is of a summary nature
and findings therein cannot amount to res judicata, however, I.:
that legal position is true only in respect of those parties, who
c set up a rival claim against the legatee. For example, here, there
were two other persons, they being Ramesh and Arun Kate,
who were joined in the Civil Revision as the legal
representatives of Sukhiabai. The finding on the Will in the order
dated 9.9.1997 passed by the Trial Court could not become
D final as against them or for that matter, anybody else, claiming
a rival title to the property, vis-a-vis, the appellant herein, and,
therefore, to that extent, the observations of the High Court are
correct. However, it could not be expected that when the
question regarding the Will was gone into in a detailed enquiry,
E where the evidence was recorded not only of the appellant, but
also of the attesting witness of the Will ~nd where these
witnesses were ·thoroughly cross-examined and where the
defendant also examined himself and tried to prove that the Will (
A
was a false document and it was held that he had utterly failed
F in proving that the document was false, particularly because the
document was fully proved by the appellant and his attesting
witness, it would be futile to expect the witness to lead that
evidence again in the main suit. It was at the instance of the
High Court in the revisional jurisdiction that the direction was
G given that the Trial Court should first decide as to whether who
could be the legal representative of Sukhiabai and after
,r-.
.,, ..:
complete enquiry, the Trial Court held the Will to be proved. The
Will was not only attacked by the appellant on its proof, but also
on merits, inasmuch as the respondent/defendant went on to
H contend before the Trial Court during that enquiry that the Will
,.
DASHRATH RAO KATE v. BRIJ MOHAN 657
SRIVASTAVA [V.S. SIRPURKAR, J.]

was unnatural, unfair and was executed in doubtful A
~ circumstances. The respondent/defendant had also relied on
the reported decision of this Court in Girja Dutt Singh vs.
Gangotri Datt Singh [AIR 1955 SC 346]. The Trial Court,
however, rejected this contention. On the other hand, the Trial
Court found on merits that the appellant was living with B.
Sukhiabai and Sukhiabai had adopted him orally.

17. Evidence of Ramesh Kate was also referred to, who
.,1 asserted about this fact. Reference was also made to the
evidence of Sukihabai herself in the Rent Control Case No. 14/ C
90-91 that she had adopted Dashrath Rao (appellant herein)
and that Dashrath Rao lived with her. Clear cut findings were
given by the High Court in these proceedings that from the
evidence of Prabhakar Rao (PW-2), the attesting witness, it
was clear that Sukhiabai had signed in his presence and he
had also signed in presence of Sukhiabai and had also seen 0
the other attesting witness signing the Will and attesting the
-· 't same. Not only this, but the Trial Court also wrote a finding that
the objection raised by the defendant (respondent herein) that
Sukhiabai was not in a position to understand the Will on
account of her poor physical condition, was also rejected by E
the Trial Court. It was also noted that the Will was executed six
years prior to her death and as such, there was no question of
Sukhiabai being suffered with any mental or physical disability
*
for executing the Will. Therefore, it is on this basis that the Will
was held to be proved. Once this was the position and in the F
same suit, the further evidence was led, there was no point on
the part of the appellant/plaintiff to repeat all this evidence all
over again. We have closely seen the relied upon ruling of the
j

Himachal Pradesh High Court in Suraj Mani & Anr. vs. Kishori
Lal (cited supra). The ruling undoubtedly correctly holds that the G
finding in an enquiry under Order 22 Rule 5 cannot operate as
"' res judicata, provided the very question needs to be decided.
The factual situation, however, differs substantially. The case
before the Himachal Pradesh High Court only pertained to the
correctness of the order passed in the enquiry under Order 22 H
658 SUPREME COURT REPORTS [2009] 15 (ADDL.) S.C.R.

A Rule 5, CPC. That was not a case where the question, as in
the present case, fell for consideration. In fact, the Himachal
Pradesh High Court also observed and, in our view, correctly,
that it was still open to the petitioner (therein) during the trial of
the suit to establish that the Will was competent and confered
B no right, title or interest on the respondent and, therefore, the
respondent was not entitled to any relief in the suit.
Unfortunately, on evidence in this case, the respondent/
defendant did not do anything and did not even challenge the
evidence of the appellant that he had become owner of the Will.
c Merely because the evidence of respondent/defendant and
Prabhakar Rao (PW-2) was not repeated all over again, it
cannot be held that the appellant/plaintiff could be non-suited
on this ground. ·

18. Dr. Kailash Chand, Learned Counsel, appearing for
D the respondent also relied on ruling in Vijayalakshmi Jayaram
vs. M.R. Parasuram [AIR 1995 A.P. 351). It is correctly held
by the Andhra Pradesh High Court that the Order 22 Rule 5 is
only for the purpose of bringing legal representatives on record
for conducting of proceedings in which they are to be brought
E on record and it does not operate as res judicata. However,
the High Court further correctly reiterated the legal position that
the inter se dispute between the rival legal representatives has
to be independently tried and decided ·in separate
proceedings. Here, there was no question of any rivalry
F between the legal representatives or anybody claiming any rival
title against the appellant/plaintiff. Therefore, there was no
question of the appellant/plaintiff proving the Will all over again
in the same suit. The other judgment relied upon is Full Bench
Judgment of Punjab & Haryana High Court in Mohinder Kaur
G & Anr. vs. Piara Singh & Ors. [AIR 1931 Punjab & Haryana
130]. The same view was reiterated. As we have already
pointed out, there is no question of finding fault with the view y •

expressed. However, in the peculiar f~cts and circumstances
of this case, there will be no question of non-suiting the
H appellant/plaintiff, particularly because in the same suit, there
DASHRATH RAO KATE v. BRIJ MOHAN 659
SRIVASTAVA [V.S. SIRPURKAR, J.]
A
. ~·
would be no question of repeating the evidence, particularly
when he had asserted that he had become owner on the basis
of the Will (Exhibit P-1). In a case in Shaligram Bhagoo Kunbi
& Anr. vs. Mt. Dhurpati Wlo Shamrao Kunbi [AIR 1939 Nagpur
147], the Division Bench of that Court consisting Hon'ble Stone
C.J. and Hon'ble Vivian Bose, J., considered the question. The B
Division Bench, firstly, quoted from Tarachand vs. Mt. Janki
[AIR 1916 Nag. 89]. The quotation relied on was as follows:-
.J "It is no longer open to the Court to stay the suit until the
dispute as to who is the legal representative of a deceased
plaintiff has been determined in a separate suit. The
c
question as to who was the representative of a deceased
defendant could not be left open for decision in another
suit, even under the old Code, but had to be decided by
the Court itself. Under the present Code, all such questions
have to be decided by the Court." D
't
The Bench then proceeded to refer to Bombay High Court
decision in Raoji Bhikaji vs. Anant Laxman [1918 (5) AIR Born
175] and Allahabad High Court decisions in Raj Bahadur vs.
Narayan Prasad [1926 (13) AIR All. 439] and Antu Rai vs. E
Ram Kinkar Rai [1936 (23) AIR All. 412] and went on to record
that order under Order 22 Rule 5 was not a res judicata. After
referring to these rulings, the Bench held:-
..
"But there is an important qualification to this. It is true the
order is not res judicata, but for all that, the decision is final F
so far as the suit in which it is made is concerned, not on
the ground of res judicata but because of Section 47. No
subsequent decision in a separate suit can be used to
affect the rights of the parties so far as questions relating
G
... y
to the 'execution, discharge or satisfaction' of the decree
in connection with which the order was made is concerned."

The Bench further observed:-

"Once a person is joined as a legal representative under H
660 SUPREME COURT REPORTS [2009] 15 (ADDL.) S.C.R.

A Order 22 Rule 5, and once it is accepted that that is final
so far as that litigation is concerned, then it follows to the
decree, and, thereafter, all matters relating to the
'execution, discharge or satisfaction' of that decree must
be decided under Section 47 and not in a separate suit."
B
(Emphasis supplied)

Ultimately, the Bench came to the conclusion:-

"All that, in our opinion, is not res judicata is the question
c whether or not the person joined as the legal
representative really occupies that character. That question
is not finally concluded by a decision under Order 22 Rule
5 except in so far as it concerns the suit in which the
decision is made. To that extent . we overrule the judgment
0 in Mt. Laxmi vs. Ganpat reported in 17 NLR 45. The
appeal is dismissed with costs." ·

(Emphasis supplied)

Therefore, it is clear that at least insofar as the suit in the
E present case is concerned, the question regarding the
appellant's right to represent was closed. There could be a
second suit, questioning his entitlement on the basis of Will, but
admittedly, there is no such challenge by any~ody to his status.
as a legatee of Sukhiabai. Insofar as the suit in the present
F case is concerned, the question was finally decided under
Order 22 Rule 5, CPC and in the same suit, it could not be re-
agitated. Obviously, the impugned judgment is incorrect when
it holds that the appellant/plaintiff had to lead fresh evidence
all over again to prove his status on the basis of the Will, which
G was held to be proved in the enquiry under Order 22 Rule 5,
CPC.

19. All this is apart from the fact that the tenant in this case
could not have challenged the Will at all. He was an utter
outsider and had no interest in the property as owner. Indeed,
H
DASHRATH RAO KATE v. BRIJ MOHAN 661
SRIVASTAVA [V.S. SIRPURKAR, J.]

from the pleadings and evidence, it is clear that tenant- A
respondent has not even ventured to claim any rival interest
against the appellant/plaintiff.

20. For all these reasons, we are unable to agree with the
impugned judgment and we would choose to set asi~e-ihe B
same and restore the two judgments of the Trial Court and
. Appellate Court. The appellant/plaintiff, therefore, succeeds with
costs of Rs.25,000/-.

B.B.B. Appeal allowed.