JUDGMENT
Vikramajit Sen, J.
1. In the present case a petition for eviction under Section 14(1)(b) had been instituted by Late Smt. Jeet Kaur. It is not in issue that during her lifetime she had executed a power of attorney in favor of her son Shri Bhupinder Singh, who undoubtedly has acted as her Parokar in the proceedings before the Rent Controller. On her death an application has been filed by Shri Bhupinder Singh on behalf of himself as well as his son Shri Ramandeep Singh. In the application it has been contended that a Will had been executed in their favor by Late Smt. Jeet Kaur. It was in these circumstances that the Additional Rent Controller had allowed the application, without considering it necessary for issuing any notice to the natural heirs, whose details had been given by Shri Bhupinder Singh, in his affidavit annexed with the application.
2. Mr. Gupta, learned counsel for the Petitioner states that the order is incorrect since there has been no compliance with the provisions of Order XXII Rule 5 of the Code of Civil Procedure. Reliance is placed by him on the following paragraph of the decision of a single Judge of the Patna High Court in Md. Janudul Haque v. Md. Zubair Haider and Anr. which is as follows:
“6. In my opinion, however, there is substance in the second contention advanced on behalf of the petitioner, namely, that the court below erred in the exercise of its jurisdiction in allowing the application for substitution without expressly recording a finding that in view of the will in his favor, the petitioner before it viz Md. Zubair Haider was the legal representative of the deceased plaintiff. As already stated. defendant No. 2 had specifically challenged the execution of any will by the deceased and, therefore, had asserted that the petitioner was not the legatee under the will of the plaintiff and, therefore, not her legal representative. It was, therefore, a case in which the question arose as to whether the petitioner before the court below was or was not the legal representative of the deceased plaintiff. According to Order 22, Rule 5 C.P.C. such a question shall be determined by the court subject to the proviso which in this case has no application. The court below therefore, had record a specific finding on the question whether the petitioner before it was or was not the legal representative of the deceased plaintiff. It has not recorded any specific finding on that point. The point has been dealt with by the court below thus:-
“It has been submitted on behalf of the petitioner that the will can be challenged by the heirs who have not come forward to challenged the said will and as such defendant NO. 2 could not legally challenged the said will on the basis of which the petitioner has come for being substituted. There is substance in the contention of the petitioner.”
The court below, therefore, has refused to determine the question whether any will had been executed in favor of the petitioner before it on the ground that the will could be challenged only by the heirs of the deceased. Now under Order 22, Rule 5 of the C.P.C. it was the duty of the court to determine whether the petitioner was the legal representative of the deceased plaintiff and for determining that question it was necessary for it to investigate and decide, whether any will in favor of the petitioner as alleged by him had been executed by the deceased or in the alternative to record a specific finding that the petitioner had intermeddled with the estate of the deceased. That it omitted to do. The order of substitution has, therefore, been passed in contravention of the provision or Order 22 Rule 5 C.P.C. and, therefore, illegally and with material illegality or irregularity in the exercise of its jurisdiction.”
3. Reliance is also placed on the decision of a Single Judge of Punjab and Haryana High Court in Anang Pal v. Pearey Lal and Ors., . In my view neither of these decision are of any assistance to the contention raised before me.
4. The factor that must be keep foremost in mind is that in respect of Wills executed in Delhi a probate is not necessary. Order XXII, Rule 5 mandates that where a question arises as to whether a person is or is not a legal representative of the deceased party, such question shall be determined by the Court. The procedure which is to be followed for such a determination is not contained in this Section. Therefore, the Court is free to pursue the course which in its opinion would meet the ends of justice. In the present case it is quite evident that two factors have prevailed upon the court to determine that the applicants are the legal representatives of the deceased petitioner, (a) that Shri Bhupinder Singh was the attorney/parokar and was thus representing Late Smt. Jeet Kaur in her lifetime, and (b) that a Will had been executed in favor of his son and him. In the opinion of the trial court these two factors were sufficient for it to return the decision that these persons were the only legal representatives of the deceased Late Smt. Jeet Kaur.
5. The present proceedings are for the eviction of the tenant and it would not be sanguine to state that the interests of the tenant is always be to delay proceedings and he does not have locus standi to question the genuiness of the Will or the bequests made therein. Therefore, it is the duty of the court to proceed with expedition. I, therefore, find no irregularity in the manner of the exercise of jurisdiction of the Additional Rent Controller. The determination necessary under Order XXII Rule 5 has taken place. The reasoning is evident from a reading of the impugned order. The outcome is also not assailable in the present circumstances. It would be quite open to the other natural heirs to seek impleadment in the petition, or oppose it, or to record any objection they have to Will, or take appropriate action to vindicate their rights in case there is and opposition to the Will. The tenant need not enter upon this controversy. The petition is without merit and is dismissed.
6. Mr. Gupta further contends that there can be no conceivable justification to the issuance of the notice to the natural heirs post the taking of the decision. To this extent I would agree with him. Therefore, the Additional Rent is directed to issue notice to the natural heirs, but the proceedings should not be delayed in this exercise being completed.
7. dusty on payment of usual charges.
