Order Passed On Application U/O XXII Rule 3 CPC Not Appealable U/O XLIII Rule 1 CPC Rather It Is A Revisable Order: Jharkhand HC

Justice Pradeep Kumar Srivastava observed, “It is here made clear that an order passed on the application under Order XXII Rule 3 CPC is not appealable under Order XLIII Rule 1 CPC rather it is a revisable order, Hence, there is no substance in the argument of learned counsel for opposite party that there is remedy of appeal before the Civil Court.”

The petition stemmed from the factual matrix in which the initial plaintiff, Parshuram Prasad, who is the husband of petitioner no. 1, claimed ownership of the disputed land and filed an eviction suit. The suit alleged, among other things, that the defendant, Kamla Devi (Opposite Party), was the plaintiff's sister. About a decade ago, the defendant and her late husband faced housing difficulties, and out of sympathy, the plaintiff allowed them to reside in the disputed premises with their children.

After the demise of the defendant's husband, the plaintiff, due to an increase in his own family members, requested the defendant to vacate the premises. The defendant initially agreed and promised to vacate by December 31, 2009. However, her intentions turned malicious, and she, using various pretexts, refused to vacate. Consequently, the plaintiff filed a suit seeking recovery of possession of the premises, along with associated costs.

During the ongoing suit, the original plaintiff, Parshuram Prasad, passed away on May 14, 2019. His wife and sons, the present petitioners, sought to be substituted as heirs and legal representatives in the suit. However, their application under Order XXII Rule 3, coupled with Section 151 CPC, for substitution was dismissed by the lower court, allegedly influenced by extraneous considerations. This dismissal is being challenged in the present petition.

The petitioner's counsel argued that the contested order was entirely illegal and fell outside the jurisdiction of the lower court. Additionally, it was asserted that none of the involved parties had clarified the nature of the suit premises or their respective statuses.

Furthermore, it was contended that the lower court exceeded its jurisdiction by concluding that the original plaintiff held the status of sikmidar. According to Sections 4 and 76 of the Chotanagpur Tenancy Act 1908, a Raiyat (Sikmidar) does not gain any occupancy rights in the land held under the Raiyat unless there is a prevailing custom or usage in the area. Such rights are neither heritable nor transferable. Consequently, it was emphasized that all rights of the plaintiff concerning the suit premises ceased upon his death, and the applicants could not be substituted for the plaintiff in this matter.

Per contra the counsel appearing on behalf of the respondent argued that the plaintiff's application under Order XXII Rule 3 CPC was adjudicated on its merits, affording a thorough opportunity for a hearing.

Furthermore, as the suit has already been abated, an appeal is permissible under Order XLIII Rule 1 of the CPC in response to the order made under Order XXII Rule 9 CPC, rendering the petition under Article 227 not tenable.

Upon careful consideration of the arguments presented by both parties and a thorough review of the available evidence, the Court found the impugned order to be unjustified in law. This conclusion was reached primarily due to the timely filing of an application under Order XXII Rule 3, seeking the substitution of legal heirs for the deceased plaintiff.

The Court emphasized that the nature of the suit focused on the recovery of possession, without any involvement of title-related questions. The Court clarified that during the hearing of the application under Order XXII Rule 3 CPC, the defendant's arguments should be confined to inquiries about the heirs and legal representatives of the deceased party. The petitioners were acknowledged as undisputed heirs and legal representatives of the deceased plaintiff.

The Court criticized the lower court for dismissing the substitution application based on extraneous considerations, particularly the status of the applicants as sikmidar. It noted that at the time of the dismissal, no order regarding the abatement of the suit was issued, and the suit continued without any valid reason for over a year.

Furthermore, the Court highlighted that an order dated 08.12.2021 had been passed during the pendency of the application under Order XXII Rule 3, which was brought to its attention through I.A. No. 6092 of 2023.

In view of above discussion and reasons, the Court observed that the impugned order was not legally sustainable and was set aside.

"It is needless to say that in view of setting aside the impugned order dated 12.03.2020, subsequent order passed by learned court below on 08.12.2021 becomes non est and accordingly the same is also set aside," the Court said while allowing the petition directing the Court below to permit the petitioners to be substituted in the original Title (Eviction) Suit as plaintiffs in place of deceased original plaintiff Parshuram Prasad and proceed further in the case.

Advocate for the Petitioner: Mr. Shankar Lal Agarwal

Advocate for the Respondent: Ms. Vikas Kumar

LL Citation: 2023 LiveLaw (Jha) 80

Case Title: Munga Devi and ors. vs Kamla Devi

Case No.: C.M.P. No. 414 of 2021

Click Here To Read/Download Judgement