BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 10/10/2007 CORAM: THE HONOURABLE MR. JUSTICE S.NAGAMUTHU C.R.P.(PD)(MD).No.916 of 2005 and M.P.(MD)No.1 of 2007 Ramasamy ... Petitioner Vs. R.Kaliyamoorthy ... Respondent Prayer Revision filed under Article 227 of the Constitution of India, against the order passed in I.A.No.66 of 2005 in O.S.No.308 of 1995 (in the matter of I.A.No.210 of 2003 in A.S.No.93 of 2001) on the file of the District Munsif, Thirvaiyaru dated 02.09.2005. !For Petitioner ... Mr.V.R.Shanmuganathan Mr.P.Thilakkumar Mr.R.M.Anbunithi ^For Respondent ... Mr.V.K.Vijayaragavan :ORDER
The plaintiff in O.S.No.308 of 1995 on the file of the learned District
Munsif, Thiruvaiyaru has come forward with this revision challenging the order
dated 02.09.2005 made in I.A.No.66 of 2005. The respondent is the petitioner in
I.A.No.66 of 2005 and a third party to the suit.
2.The above suit was filed by the plaintiff for declaration of title and
for consequential relief of injunction to restrain the defendant from in any way
interfering with the alleged peaceful possession and enjoyment of the property
of the petitioner herein. The said suit was laid against one Mrs.Papathiammal.
On appearance before the lower court, the sole defendant Mrs.Papathiammal filed
a petition under Order 7 Rule 11 C.P.C. seeking to reject the plaint. The
learned District Munsif allowed the same and rejected the plaint. Challenging
the said order, the petitioner herein has filed A.S.No.93 of 2001 on the file of
the learned Principal District Judge, Thanjavur.
3.During the pendency of the said appeal, the sole respondent in the
appeal Mrs.Papathiammal died. Thereafter, the petitioner filed I.A.No.210 of
2003 before the lower appellate court seeking to implead the respondent herein
as the second respondent in the appeal on the basis of a Will allegedly executed
by Mrs.Papathiammal in favour of the respondent but subject to the proof of the
Will.
4.The learned District Judge, however by order dated 07.02.2005 forwarded
the said I.A.No.210 of 2003 to the trial court namely, the learned District
Munsif, Thiruvaiyaru directing him to record evidence in respect of the proof
the Will and to forward the same to the Appellate Court along with his findings
as provided in Order 22 Rule 5 C.P.C. The learned District Munsif renumbered
I.A.No.210 of 2003 as I.A.No.66 of 2005 and proceeded with the enquiry.
5.On the side of the petitioner herein, he was examined as P.W.1 and on
the side of the respondent, three witnesses were examined. Five documents were
marked as Exs.P.1 to P.5 on the side of the petitioner herein and three
documents were marked on the side of the respondent herein as Exs.R.1 to R.3.
After considering all the materials, the learned District Munsif has allowed the
Interlocutory Application holding that the Will dated 10.05.1989 said to have
been executed by Mrs.Papathiammal in favour of the respondent is true as the
same has been proved and thus the respondent herein is the legal representative
of the deceased Mrs.Papathiammal. Along with the findings and evidence
recorded, the trial court has submitted the records to the learned Principle
District Judge. The above order of the learned District Munsif is under
challenge in this revision.
6.Heard the learned counsel for the petitioner and the learned counsel for
the respondent.
7.The main contention of the learned counsel for the petitioner in this
revision is that the learned District Munsif has not strictly exercised his
power as provided in Order 22 Rule 5 C.P.C. inasmuch as he has exceeded his
power by going into the merits of the case in detail and to give a finding as if
he was deciding the issues involved in the suit. According to the learned
counsel, the learned District Munsif should have confined himself only in
recording the evidence and to give a prima facie finding whether the respondent
is the legal representative of Mrs.Papathiammal or not.
8.Per contra, the learned counsel for the respondent would submit that the
learned District Munsif has only obeyed the order of the lower appellate court
wherein the lower appellate court was directed to record evidence and to give
his finding regarding the genuineness of the Will. Therefore, according to the
learned counsel, the learned District Munsif has not exceeded his jurisdiction.
9.I considered the rival contentions.
10.A cursory perusal of Order 22 Rule 5 C.P.C. would show that the learned
District Munsif is required not only to record the evidence but also to give a
finding whether the respondent is the legal representative of the deceased or
not based on the Will. To decide the said question, it is necessary to give a
finding to go into the question whether the Will is genuine or not. Without
giving a definite finding whether the Will is true or not, it will not be
possible for the Court to give a finding whether the respondent is the legal
representative or not. Therefore, in my considered opinion, the learned
District Munsif has not exceeded the jurisdiction. He has rightly analyzed the
evidence and has given a finding that the Will has been proved under which the
respondent is the legal representative of the deceased Mrs.Papathiammal. But
such finding given by the learned District Munsif is not binding on the learned
District Judge.
11.Again a perusal of the proviso to Order 22 Rule 5 C.P.C. would show
that the appellate court is required to determine whether the respondent is the
legal representative of the deceased or not. To make such a determination, the
lower appellate court will have to consider the evidence recorded before the
lower court and also the finding given by the lower court. Before even such a
finding given by the lower court, the petitioner has rushed to this Court with
this C.R.P. Therefore, in my considered opinion, this revision at this stage is
not maintainable and therefore the same is liable to be dismissed, however with
the following clarifications:
12.The lower appellate court shall, on receipt of the records from the
trial court such as the evidence recorded in the I.A. and its findings, shall
afford sufficient opportunities to both parties to make their submissions and
then to give a finding whether the Will is true and whether the respondent is
the legal representative of the deceased Mrs.Papathiammal or not. Till such
finding is given by the lower appellate court, it shall not be construed that
the Will has been proved and that the respondent is the legal representative of
the deceased. It is needless to say that any order which would be made by the
lower appellate court in this I.A. shall be subject to further revision if any
one feels aggrieved by the same. As of now, since the I.A. is deemed to be
pending before the appellate court, the appellate court shall dispose of the
same in accordance with law.
13.In the result, the C.R.P.is dismissed with a direction to the lower
appellate court to consider I.A.No.66 of 2005 in accordance with law after
affording sufficient opportunities to both parties and to decide whether the
Will has been proved or not and by virtue of the said Will whether the
respondent has become the legal representative or not so as to decide whether to
implead him as the respondent in the appeal or not. The lower appellate court
shall complete the exercise within a period of six weeks from the date of
receipt of a copy of this order.
14.It is further clarified that any other finding given by the learned
District Munsif touching the issues involved in the suit which are now before
the appellate court shall not be considered by the lower appellate court as the
same is beyond the jurisdiction of the learned District Munsif. No costs.
Consequently, connected C.M.P.is dismissed.
nbj
To
The District Munsif, Thirvaiyaru.