Supreme Court of India
SWAMI VEDVYASANAND JI MAHARAJ (D) THR LRSversusSHYAM LAL CHAUHAN & ORS.
- Citation
- 2024 INSC 352
- Decided
- 30 April 2024
- Disposal
- Disposed off
Holding
The High Court failed to follow the procedure prescribed under Order 22 Rule 5 of the CPC as it did not consider the objections and evidence before substituting the legal representative.
Summary
The case concerned a second appeal pending before the Patna High Court in which the original defendant, Swami Shivdharmanand, had died, and two claimants sought substitution as legal representatives. The High Court, after a trial‑court enquiry under Order 22 Rule 5 of the CPC, substituted Swami Satyanand as the appellant without considering objections to the trial‑court report or the pending substitution application of Swami Triyoganand. The Supreme Court examined whether the High Court had complied with the procedural requirements of Order 22 Rule 5, which mandates that an appellate court must consider the subordinate court’s findings together with any objections before deciding on substitution. It held that the High Court misread the rule, failed to consider the objections and evidence, and therefore did not follow the correct procedure. Consequently, the Supreme Court set aside the High Court’s orders of 19 June 2019 and 30 January 2019 and remitted the matter for a fresh determination on substitution, without addressing the merits of the competing claims.
Issues considered
- Whether the High Court correctly applied Order 22 Rule 5 of the Code of Civil Procedure in substituting a legal representative without considering objections to the trial‑court report.
- Whether the proviso to Rule 5 allows an appellate court to delegate the decision on substitution to a subordinate court.
Legislation cited
- Code of Civil Procedure, 1908s. Order 22 Rule 5
Subjects
Substitution applicationLegal RepresentativesSignificance of substitutionAppellate CourtDiscretion
Judgment
[2024] 5 S.C.R. 462 : 2024 INSC 352
Swami Vedvyasanand Ji Maharaj (D) Thr LRs
v.
Shyam Lal Chauhan & Ors.
(Civil Appeal No. 5569-5570 of 2024)
30 April 2024
[A.S. Bopanna and Sudhanshu Dhulia, JJ.]
Issue for Consideration
Whether the High Court, while substituting Respondent No.6 as the
appellant in the Second Appeal, has followed the correct procedure
prescribed under Order XXII Rule 5 of the Code of Civil Procedure.
Headnotes
Code of Civil Procedure – Order XXII Rule 5 – Significance of
substitution – Substitution gives the right to the substituted
legal representatives to contest the claim of the deceased.
Held: The only purpose of substitution is the continuation of the case –
The substitution as LR in a case by itself will not give any title in favour
of the person so substituted – It only confers the right to represent
the estate of the deceased in the pending proceedings – Despite
the limited purpose of substitution of legal representatives, it has its
significance in as much as it gives the right to the substituted legal
representatives to contest the claim of the deceased. [Paras 10 & 11]
Code of Civil Procedure – Order XXII Rule 5 – Explained
Order XXII Rule 5 CPC mandates that in case of death of plaintiff
or defendant, if a question arises as to whether any person is or is
not the legal representative of the deceased party, the court shall
first determine such a question – Proviso of this Rule is only an
enabling provision where the appellate court may before deciding
the question 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. [Para 14]
Code of Civil Procedure – Order XXII Rule 5 – Proviso cannot
be construed as 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
Held: While dealing with the report sent by the subordinate court
under Order XXII Rule 5 CPC, the Appellate Court may consider the
[2024] 5 S.C.R. 463
Swami Vedvyasanand Ji Maharaj (D) Thr LRs v.
Shyam Lal Chauhan & Ors.
findings of the subordinate court and then give its reasons before
reaching any conclusion – 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 – Thus, 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. [Para 17]
Code of Civil Procedure – Order XXII Rule 5 – Correct procedure
not followed by the Appellate Court as it failed to consider the
evidence in support of the Respondent No.6 and the objections
against the Trial Court report while making its determination
on substitution.
Held: The High Court, being the Appellate Court, while substituting
Respondent No.6 as the appellant in the Second Appeal did not
follow the correct procedure – The High Court has misread Rule
5, as well as the previous order of the Supreme Court, as it failed
to consider the objections against the Trial Court report while
making its determination on substitution – The High Court did not
discuss the evidence in support of the claim of the Respondent
No. 6 nor did it consider the objections of the other party on such
claims. [Paras 13, 15-16]
Case Law Cited
Jaladi Suguna v. Satya Sai Central Trust [2008] 7 SCR
734 : (2008) 8 SCC 521 – referred on.
List of Acts
Code of Civil Procedure, 1908.
List of Keywords
Substitution application; Legal Representatives; Significance of
substitution; Appellate Court; Discretion.
Case Arising From
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 5569-5570 of
2024
From the Judgment and Order dated 19.06.2019 of the High Court of
Judicature at Patna in IA Nos. 7 and 8 of 2019 in S.A. No. 169 of 1993
464 [2024] 5 S.C.R.
Digital Supreme Court Reports
Appearances for Parties
Shyam Divan, Sr. Adv., Sabarish Subramanian, Vishnu Unnikrishnan,
C Kranthi Kumar, Naman Dwivedi, Danish Saifi, Advs. for the
Appellants.
Krishnan Venugopal, Sr. Adv., Vijay K. Jain, Rohit K. Singh, Pritam
Bishwas, Avinash Mathews, Advs. for the Respondents.
Judgment / Order of the Supreme Court
Order
Leave granted.
2. The present appeals arise out of an order in a pending Second
Appeal before the High Court of Judicature at Patna. The necessary
facts for our consideration are as follows:
3. Respondent Nos.1 to 4 were plaintiffs in a civil suit where Swami
Shivdharmanand Ji Maharaj @ Deo Shankar Tiwary (hereinafter
referred to as ‘Swami Shivdharmanand’) was one of the defendants.
It was a title suit seeking declaration regarding the suit property which
is situated in Bihar. The suit was dismissed by the Trial Court on
26.03.1991. The First Appellate Court allowed the appeal and decreed
the suit. Consequently, the defendant Swami Shivdharmanand filed
a second appeal, which is still pending before the Patna High Court.
Meanwhile the defendant, who had filed the second appeal passed
away on 20th March, 1999. There were two claimants, or successors
of the “Gaddi” of Swami Shivdharmanand, who sought substitution
in place of Swami Shivdharmanand in the Second Appeal. These
were (a) Swami Triyoganand Ji Maharaj @ Ram Narayan Bind
(hereinafter referred to as ‘Swami Triyoganand) and (b) Swami
Satyanand Ji Maharaj @ Ramjee Singh (hereinafter referred to as
‘Swami Satyanand’) who is respondent no.6 in the present appeal.
4. Initially, Patna High Court directed the Trial Court to conduct an
enquiry in the matter as laid down under Rule 5 of Order 22 of Civil
Procedure Code, for the purpose of substitution. The Trial Court did its
enquiry and submitted the report before the Patna High Court, where
the findings were that Swami Satyanand (i.e., present respondent
No.6) is the Legal Representative (hereinafter referred to as ‘LR’)
of Swami Shivdharmanand and is liable to be substituted as the
[2024] 5 S.C.R. 465
Swami Vedvyasanand Ji Maharaj (D) Thr LRs v.
Shyam Lal Chauhan & Ors.
appellant before the High Court. Objections were filed to the said
report by the other party, which is the predecessor-in-interest of the
appellant before this Court. The Patna High Court instead of giving a
decision based on the report and the objections, passed an order on
24.02.2009, allowing both the parties (Swami Satyanand and Swami
Triyoganand) to be substituted as LRs to Swami Shivdharmanand.
This order of the Patna High Court came to be challenged by both
the parties (i.e., Swami Triyoganand as well as Swami Satyanand),
before this Court. This court vide order dated 08.02.2018 had set
aside the order of the High Court and remanded the matter to Patna
High Court, with directions to consider the report of the Trial Court
as well as the ‘objections of parties’ and then to substitute one of
the two parties as appellant, thereby holding that only one of the two
claimants should be substituted as appellant/defendant.
5. Consequently, the High Court passed an order dated 30.01.2019
wherein it upheld the findings of the Trial Court on the legal
representation and came to the conclusion that Swami Satyanand is the
LR of Swami Shivdharmanand. Thus, Swami Satyanand was ordered
to be substituted as the appellant in the pending Second Appeal.
6. Now the fact of the matter is that when this order was passed by
the High Court on 30.01.2019, Swami Triyoganand too passed away
on 04.12.2018 and an adjournment was also sought to bring the LR
of Swami Triyoganand on record, but the substitution could not be
done. The Patna High Court went ahead and passed the order in
favour of Swami Satyanand on the ground that the Trial Court in its
report has found Swami Satyanand to be the LR of the appellant-
Swami Shivdharmanand, and it is therefore needless to adjourn the
matter any further.
7. Subsequently, the appellant before us, i.e., Swami Vedvyasanand
Ji Maharaj (hereinafter referred to as Swami Vedvyasanand) moved
two applications before the Patna High Court on 22.02.2019. The
first was to substitute himself in place of Swami Triyoganand, while
the second was to recall the order dated 30.01.2019. Both these
applications i.e., IA Nos.7 and 8 of 2019 were taken up and dismissed
vide the impugned order on 19.06.2019.
8. In doing so, the reasons given by the High Court are that Trial Court
had conducted an enquiry and concluded that the LR of deceased
Swami Shivdharmanand is Swami Satyanand. This report was
466 [2024] 5 S.C.R.
Digital Supreme Court Reports
accepted by the High Court and consequently, Swami Satyanand
was substituted and the claim of Swami Triyoganand was dismissed.
Since the claim of the deceased appellant-Swami Vedvyasanand
is based only on the claim of Swami Triyoganand, the High Court
perhaps did not find it appropriate or necessary to even consider
his substitution application and therefore rejected the substitution
application along with the recall application. Aggrieved by the same,
Swami Vedvyasanand had filed the present appeal.
We must further note here that the matter as it stands today is that
even Swami Vedvyasanand has passed away and now Sadhavi
Sarojanand, who claims to be the legal heir of Swami Vedvyasanand,
is seeking substitution as appellant in the pending second appeal
before the High Court.
9. We have heard learned senior Counsel for both the parties at length
and have perused the material on record.
10. The only purpose of substitution is the continuation of the case. The
substitution as LR in a case by itself will not give any title in favour
of the person so substituted. It only confers the right to represent
the estate of the deceased in the pending proceedings. In Jaladi
Suguna v. Satya Sai Central Trust, (2008) 8 SCC 521 this limited
right was explained as follows:
“15. 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, can it be said that the estate of the
deceased is represented. The determination as to who
is the legal representative under Order 22 Rule 5 will
of course be for the limited purpose of representation
[2024] 5 S.C.R. 467
Swami Vedvyasanand Ji Maharaj (D) Thr LRs v.
Shyam Lal Chauhan & Ors.
of the estate of the deceased, for adjudication of that
case. Such determination for such limited purpose will not
confer on the person held to be the legal representative,
any right to the property which is the subject-matter of
the suit, vis-à-vis other rival claimants to the estate of
the deceased.”
11. Despite the limited purpose of substitution of legal representatives, it
has its significance in as much as it gives the right to the substituted
legal representatives to contest the claim of the deceased.
12. In the present case, when parties had come before this Court earlier,
this Court vide order dated 08.02.2018 had remitted the matter to the
High Court to decide the question of legal representatives by taking
the report of the Trial Court and the objections into consideration,
after hearing both the sides. After the order of this Court, the High
Court vide order dated 30.01.2019 had upheld the findings of the
Trial Court by concluding that Swami Satyanand is the disciple of
Swami Shivdharmanand, while rejecting the claims of the Swami
Triyoganand including the appellant, who claimed their right through
the deceased Swami Triyoganand. Further, the application to recall
the order dated 30.01.2019 moved by the appellant was dismissed
vide impugned order on the ground that the appellant claimed himself
to be the disciple of Swami Triyoganand and the High Court has
already decided to reject the claim of Swami Triyoganand. The High
Court ignored the fact that the order dated 30.01.2019 was passed
after the death of Swami Triyoganand and without considering the
pending substitution application.
13. In our opinion, the High Court while substituting Swami Satyanand
(Respondent No.6) as the appellant and dismissing the claim of
appellant’s predecessor-in-interest i.e., Swami Triyoganand did not
follow the correct procedure.
We are not commenting on the merits of the High Court finding on
Swami Satyanand being the rightful representative in the case, we
are only on the procedure followed by the High Court while doing so.
14. Order 22 Rule 5 of CPC reads as follows:
“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
468 [2024] 5 S.C.R.
Digital Supreme Court Reports
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 therefor, and
the Appellate Court may take the same into consideration
in determining the question.”
This Rule mandates that in case of death of plaintiff or defendant,
if a question arises as to whether any person is or is not the legal
representative of the deceased party, the court shall first determine
such a question. Proviso of this Rule is only an enabling provision
where the appellate court may before deciding the question can
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.
15. In the case at hand, the High Court had earlier fallen into error
by substituting both the claimants as legal representatives of the
deceased defendant for the purpose of hearing the appeal and thus,
the matter was remanded by this Court vide Order dated 08.02.2018.
We are afraid that the High Court has again misread Rule 5 as well
as our order, as it failed to consider the objections against the Trial
Court report while making its determination on substitution.
16. In the order dated 30.01.2019, the High Court interprets this Court’s
order as if a request was made to substitute the one who is found
to be the legal representative in the enquiry:
“From perusal of the order of the Hon’ble Supreme Court,
it appears that the Hon’ble Supreme Court has held that
the person who is found to be the legal representative of
the deceased-appellant in an enquiry held under Order
22 Rule 5 should be substituted………”
The High Court did not discuss the evidence in support of the claim
of the Respondent No. 6 nor did it consider the objections of the
other party on such claims. Moreover, there was already another
substitution application pending before the Court which was not
considered.
[2024] 5 S.C.R. 469
Swami Vedvyasanand Ji Maharaj (D) Thr LRs v.
Shyam Lal Chauhan & Ors.
17. 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. 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.
Thus, 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.
18. We, therefore, set aside the order dated 19.06.2019 and 30.01.2019,
and remit the matter back to the High Court for a fresh decision on
substitution.
We reiterate that we have said nothing on the merit of the relative
claims of the contenders, our concern and our reasons for yet again
sending the matter back were only on the procedure.
19. Accordingly, these appeals stand disposed of along with the pending
application(s), if any.
Headnotes prepared by: Result of the case:
Mukund P Unny, Hony. Associate Editor Appeals disposed of.
(Verified by: Liz Mathew, Sr. Adv.)
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