@JUDGMENTTAG-ORDER
1. This civil revision petition is directed against the order of V Senior Civil Judge, City Civil Court, Hyderabad dated 16-10-1999 passed in IA No.1142 of 1996 in OS No.93 of 1992, under which the petition said to have been filed under Order 22, Rule 3 CPC was allowed bringing the District Collector as the 5th defendant as the Legal Representative of the deceased 1st defendant.
2. The petition was opposed on behalf of the 2nd defendant in the suit. It was pleaded that the 2nd defendant is in fact the legal representative of the deceased 1st defendant, inasmuch as he claims as a beneficiary under a will deed, interest in the suit properties.
3. The learned Judge allowed the petition observing that the Will deed dated 25-7-1996, on the basis of which interest is claimed by the 2nd defendant, was not filed into the Court at all. On this basis, he ordered that impeding of the District Collector as a defendant in the suit would be necessary so that the estate of the deceased 1st defendant is represented in the suit.
4. The learned Counsel for the petitioners contends that the learned Judge firstly proceeded on a wrong assumption that the Will deed in question was not filed by the petitioners at all in the Court, and that in fact the original Will deed was filed on 29-7-1999, as is obvious from SRNo.5269 of 1999 which was assigned by the office on filing of the said document. It is further contended that at any rate in a petition filed under Order 22, Rule 3 CPC, there is no warrant for impleading the District Collector as a defendant in the suit.
5. The learned Counsel for the respondents seeks to counter this submission by stating that the Will deed in question has not been filed in the Court by the time the petition came up for hearing.
6. When the learned Counsel for the petitioner gives a specific date and SR number under which the will deed is said to have been filed in the Court, it is necessary to ascertain the same. At any rate, if it has been filed, the order must proceed on the basis that the document was before the Court.
7. The learned Senior Civil Judge purported to have passed the order under Order 22, Rule 3 CPC. It is difficult to concede how in a petition filed under Order 22, Rule 3 CPC, the District Collector can be impleaded as a defendant in the suit. By no stretch of imagination, can the District Collector be considered as the legal representative of the deceased 1st defendant. At any rate, he has no claim to be the legal representative of the deceased 1st defendant. However, under Order 22, Rule 4-A CPC, if the Court finds that where a parry to a suit had died without leaving any legal representative, the Court may on the application of any party to the suit proceed in the absence of a person representing the estate of the deceased or may by order appoint the Administrator General or an Officer of the Court or such other person as it thinks fit to represent the estate of the deceased person for the purpose of the suit. The impugned order does not disclose that the learned Judge considered the requirements of Order 22, Rule 4-A CPC while passing the order. Firstly, if the Court finds that a party to a suit who died, has no legal representative, it is for the Court apply its mind and decide whether it would like to proceed in the absence of the legal representative or it would proceed under Order 22, Rule 4-A CPC. But, impleading the District Collector as defendant in the suit on the petition of the plaintiff purporting to bring the legal representative of the deceased 1st defendant, appears to be improper. At any rate, even assuming that the Court proceeded under Order 22, Rule 4-A CPC, it is incumbent on the Court to ascertain the willingness of the person appointed to defend the interest of the deceased party before passing an order under Order 22, Rule 4-A as provided by clause (b) of sub-rule (2) of Order 22, Rule 4-A CPC.
8. Taking any view of the matter, the impugned order passed by the learned Senior Civil Judge cannot stand and it is accordingly set aside. The civil revision petition is allowed. The lower Court will deal with and pass an order in respect of memorandum filed on behalf of the alleged legal representatives of the 1st defendant informing the Court that they are the legal representatives. It is open to the plaintiffs to file any separate LR petition, if they are so advised. No costs.
