Id Mohammad v. Smt. Bunda Bai

NAFR HIGH COURT OF CHHATTISGARH, BILASPUR WP227 No. 129 of 2016

1. Id Mohammad S/o Abdul Ajim, aged about 49 years, R/o. Ward No. 13, Nandini Town Shop, Ahiwara, Tahsil Dhamdha, District Durg (Chhattisgarh).

---- Petitioner

Versus

1. Smt. Bunda Bai W/o Late Lakhandas, aged about 55 years, R/o Village Arasnara, Tahsil Dhamdha, District Durg Chhattisgarh (Since Dead),

2. State of Chhattisgarh, Through : The Collector, Durg Chhattisgarh,

3. Soham Das S/o Mehattar Das, aged about 39 years, R/o Village Deuargaon, Tahsil Saja, District Bemetara Chhattisgarh,

4. Rajendra Das, S/o Late Keju Das, aged about 36 years, R/o Village Kutelabhatha, Tahsil and District Durg Chhattisgarh. ---- Respondents For Petitioner - Shri T.K.Jha, Advocate.

For Respondents 1, 3 and 4 - None, not noticed. For Respondent No.2 - Shri S.C.Khakhariya, Deputy Advocate General, on advance copy.

Hon'ble Shri Justice Chandra Bhushan Bajpai Order on Board 25/02/2016 1.

Looking to the relief as prayed in the instant WP(227), it is submitted on behalf of the petitioner that the petition may be disposed of at this very stage without even issuance of notice to other respondents. Learned counsel further submitted that the Court below while hearing the interim application under Order 22 Rule 5, 10 of the CPC filed on behalf of respondents 3 and 4 in Civil Suit No.70A/2013 for impleading them as legal representatives of died defendant (D-1) Smt. Bunda Bai on the basis of L.R. as the Will is in their favour. The Court below without making any enquiry, straightway allowed the said application, but as per the provisions of Order 22 Rule 5 of the CPC, to determine the question of L.R. of such defendant enquiry is required. As such, the order passed by the Court below without proper enquiry is improper and

illegal. It is simply praying that the Court below be directed to conduct an enquiry under the provisions of law as expected under Order 22 Rule 5 of the CPC and pass an order thereafter.

2.

Perused the impugned order dated 16-12-2015 and the instant WP(227).

3.

On due consideration, it goes to show that the impugned order dated 16-12-2015 was passed without any determination as required under Order 22 Rule 5 of the CPC, with this, the order requires interference without even issuance of notice to other respondents.

4.

Consequently, the instant WP(227) is hereby disposed of at the initial stage itself. The order dated 16-12-2015 passed by the Court below is hereby set aside. The Court below is directed to conduct an enquiry as required under the law for determination of the issue whether the applicants/respondents 3 and 4 are legal representatives of the deceased defendant (D-1) or not as per requirement of Order 22 Rule 5 of the CPC and further directed to pass an order afresh after hearing both the parties without being influenced by the order dated 16-12-2015.

5.

The petition disposed of.

6.

The petitioner may submit copy of this order for compliance. 7.

No order as to cost.

Sd/- (Chandra Bhushan Bajpai) JUDGE Aadil