Dakshinamurthy Vs. B.K. Das I.A.S. and ors. - Court Judgment

Excerpt:
- section 11: [markandey katju & v.s.sirpurkar, jj] res judicata - enquiry as to who is legal representative of deceased party held, as a legal position, it cannot be disputed that normally, an enquiry under order 22, rule 5 cpc as to whether a person is legal representative of deceased party is of a summary nature and findings therein cannot amount to res judicata, however, that legal position is true only in respect of those parties, who set up a rival claim against the legatee. but such finding would be final and operate as res judicata as regards that suit and cannot be re-agitated. order 22, rule 5 & section 11: [markandey katju & v.s. sirpurkar, jj] substitution of parties enquiry as to who is legal representative of deceased party in the instant case the owner of suit property filed suit for ejectment of tenant. the owner died during pendency of suit. the appellant was brought on record as legal representative of deceased-plaintiff on the basis of will after due enquiry under order 22, rule 5. the order of substitution was not challenged and allowed to become final by tenant-respondent. the eviction suit was decreed by trial court after trial. appeal there against was dismissed by appellate court. on further appeal the high court non-suited the appellant by accepting plea of tenant that in spite of the fact that the appellant/plaintiff was brought on record as legal representative of deceased owner on the basis of the will, yet he should have led more evidence to prove the will in order to prove that he had become owner on the basis of the testamentary succession of the concerned house. the high court took the view that since the inquiry under order 22, rule 5, cpc was of the summary nature and was limited only to the determination of the right of the appellant to be impleaded as the legal representative, any finding given in that inquiry would not be binding on the dependant (respondent herein) at the final stage of the suit and the plaintiff (appellant herein) would have to again prove the will in order to establish his ownership vis--vis the concerned premises. held, the order passed by high court was liable to be set aside. when the question regarding the will was gone into in a detailed enquiry, where the evidence was recorded not only of the appellant, but also of the attesting witness of the will and where these witnesses were thoroughly cross-examined and where the defendant also examined himself and tried to prove that the will was a false document and it was held that he had utterly failed in proving that the document was false, particularly because the document was fully proved by the appellant and his attesting witness, it would be futile to expect the witness to lead that evidence again in the main suit. at least insofar as the eviction suit is concerned, the question regarding the appellants right to represent was closed. there could be a second suit, questioning his entitlement on the basis of will, but admittedly, there is no such challenge by anybody to his status as a legatee. insofar as the suit in the present case is concerned, the question was finally decided under order 22, rule 5, cpc and in the same suit it could not be re-agitated. ordertarun chatterjee, j.1. we have heard the learned counsel for the parties on the contempt application.2. after hearing the learned counsel for the parties and after going through the materials on record and the application for contempt, we are of the view that pending final disposal of the contempt proceeding, the following order may be passed:3. by a final judgment, this court directed the state/respondents to implement the bangalore-mysore infrastructure corridor project. unfortunately, the said project has not yet been implemented by the state/respondents. on 4th of february, 2009, when this contempt proceeding was taken up for hearing by this court, mr. g. e. vahanvati, learned solicitor general of india (as he then was) appearing for the state, stated before the court that the state government has decided to implement the judgment of the high court of karnataka, as upheld by this court, and needs time for implementation of the decision. unfortunately, in spite of such submission made by the learned solicitor general of india (as he then was), we are informed that the project has not yet been implemented. while some argument was advanced by the learned counsel for the parties and the advocate general of the state, who is present today in court, who submitted before us that the state has already taken all steps to implement the project and in fact, some lands have already been allotted to the applicants. since the learned advocate general of the state submitted that all possible steps have been taken to implement the project and to act in compliance with the judgment of this court, we direct that the state government shall constitute a committee to be headed by the chief minister of karnataka for the purpose of implementation of the project in question, which will submit a report by 22nd of november, 2009 as to allotment and possession of lands for completion of the project and such steps can be taken within the time that may be mentioned in the report and the project shall be allowed to be completed as per the alignment specified in the outline development plan dated 12th of february, 2004 issued by the bangalore mysore infrastructure corridor area planning authority as per the town and country planning act.4. let this matter be placed for further orders on 26th of november, 2009 at 3.30 pm.

Judgment:
ORDER

Tarun Chatterjee, J.

1. We have heard the learned Counsel for the parties on the Contempt Application.

2. After hearing the learned Counsel for the parties and after going through the materials on record and the application for Contempt, we are of the view that pending final disposal of the Contempt proceeding, the following order may be passed:

3. By a final Judgment, this Court directed the State/respondents to implement the Bangalore-Mysore Infrastructure Corridor Project. Unfortunately, the said project has not yet been implemented by the State/respondents. On 4th of February, 2009, when this Contempt proceeding was taken up for hearing by this Court, Mr. G. E. Vahanvati, learned Solicitor General of India (as he then was) appearing for the State, stated before the Court that the State Government has decided to implement the Judgment of the High Court of Karnataka, as upheld by this Court, and needs time for implementation of the decision. Unfortunately, in spite of such submission made by the learned Solicitor General of India (as he then was), we are informed that the project has not yet been implemented. While some argument was advanced by the learned Counsel for the parties and the Advocate General of the State, who is present today in Court, who submitted before us that the State has already taken all steps to implement the project and in fact, some lands have already been allotted to the applicants. Since the learned Advocate General of the State submitted that all possible steps have been taken to implement the project and to act in compliance with the Judgment of this Court, we direct that the State Government shall constitute a Committee to be headed by the Chief Minister of Karnataka for the purpose of implementation of the project in question, which will submit a report by 22nd of November, 2009 as to allotment and possession of lands for completion of the project and such steps can be taken within the time that may be mentioned in the report and the project shall be allowed to be completed as per the alignment specified in the Outline Development Plan dated 12th of February, 2004 issued by the Bangalore Mysore Infrastructure Corridor Area Planning Authority as per the Town and Country Planning Act.

4. Let this matter be placed for further orders on 26th of November, 2009 at 3.30 PM.