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Ashwani Kumar v. Smt. Vidya & Ors.
Factual and Procedural Background
The suit was originally dismissed by the trial court. The plaintiff filed an appeal, but during the pendency of the appeal, the plaintiff died. The applicant sought to substitute himself as the legal heir of the deceased plaintiff, claiming to be the adopted son based on a registered adoption deed dated 31-1-1984. The defendants objected to this substitution. The lower Appellate Court rejected the substitution application on the ground that the adoption deed was not validly executed and simultaneously dismissed the appeal as abated. The applicant then filed the present application under Article 227 of the Constitution of India challenging the lower Appellate Court's order.
Legal Issues Presented
- Whether the order rejecting the application for substitution under Order 22, Rule 5 of the Civil Procedure Code (C.P.C) amounts to a decree under Section 2(2) of the C.P.C and is therefore appealable under Section 100 of the C.P.C.
- Whether the lower Appellate Court had jurisdiction to examine the validity of the registered adoption deed under the Hindu Adoptions and Maintenance Act, 1956.
- Whether the application under Article 227 of the Constitution of India is maintainable against the impugned order.
Arguments of the Parties
Respondents' Arguments
- The application under Article 227 of the Constitution of India was not maintainable because the impugned order was a decree within the meaning of Section 2(2) of the C.P.C, and only an appeal under Section 100 of the C.P.C was permissible.
- The lower Appellate Court's order, rejecting the substitution application and dismissing the appeal as abated, finally determined the rights of the parties and thus amounted to a decree.
- Reliance was placed on precedents including Brij Jivan Lal v. Shiam Lal (AIR 1950 Allahabad 57), Vidya Wati v. Chambeli (AIR 1935 Lahore 47), Udmi v. Hira (AIR 1920 Lahore 338), and Dumi Chand v. Arja Nand (1915 ILR (XXXVII) (All) 272) to support the proposition that such orders are appealable decrees.
Applicant's Arguments
- The application under Order 22, Rule 5 of the C.P.C is summary in nature and does not amount to a decree under Section 2(2) of the C.P.C.
- The order rejecting the substitution application does not finally determine the question of legal representation and is not appealable.
- The lower Appellate Court had no jurisdiction to question the validity of the registered adoption deed under the Hindu Adoptions and Maintenance Act, 1956, particularly given the statutory presumption under Section 16 of the Act.
- The impugned order should be quashed and the substitution application reconsidered.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Brij Jivan Lal v. Shiam Lal, AIR 1950 Allahabad 57 | Determination that an order dismissing a suit as abated amounts to a decree and is appealable under Section 96 of the C.P.C. | The court distinguished this precedent, noting it applies where the right to sue does not survive, which was not the case here. |
| Vidya Wati v. Chambeli, AIR 1935 Lahore 47 | Principles relating to appealability of orders dismissing suits or applications. | Found to be distinguishable and not applicable to the present facts. |
| Udmi v. Hira, AIR 1920 Lahore 338 | Legal principles concerning finality of orders and appealability. | Not applicable to the facts and circumstances of the present case. |
| Dumi Chand v. Arja Nand, 1915 ILR (XXXVII) (All) 272 | Appealability of orders dismissing suits and related procedural matters. | Distinguished and not followed in the present case. |
| Mst. Deu v. Laxmi Narayan, 1998 (8) SCC 701 | Section 16 of the Hindu Adoptions and Maintenance Act, 1956: presumption in favor of registered adoption deeds and limitation on collateral challenge. | Applied to hold that the lower Appellate Court lacked jurisdiction to question the validity of the registered adoption deed in the substitution application. |
Court's Reasoning and Analysis
The court analyzed whether the order rejecting the substitution application under Order 22, Rule 5 of the C.P.C amounted to a decree under Section 2(2) of the C.P.C. It held that such an order is summary in nature, intended only to determine who may continue proceedings as a legal representative, and does not finally adjudicate the rights of the parties. Therefore, the order does not constitute a decree and is not appealable under Section 100 of the C.P.C.
The court further considered the jurisdiction of the lower Appellate Court to examine the validity of the registered adoption deed. It noted the statutory presumption under Section 16 of the Hindu Adoptions and Maintenance Act, 1956, which presumes the validity of registered adoption documents unless disproved. The court held that the lower Appellate Court had no jurisdiction to question the validity of the registered adoption deed in the substitution application and that any challenge to the deed must be pursued in independent proceedings.
In distinguishing the precedents cited by the respondents, the court emphasized that those cases involved situations where the right to sue did not survive, thereby rendering the order a final decree. In the present case, the applicant's right to sue was not negated by the lower court's order.
Consequently, the court quashed the impugned order of the lower Appellate Court and allowed the writ petition, directing the lower Appellate Court to reconsider the substitution application in light of the observations made.
Holding and Implications
The court held that the order rejecting the substitution application under Order 22, Rule 5 of the C.P.C does not amount to a decree under Section 2(2) of the C.P.C and is therefore not appealable; accordingly, the application under Article 227 of the Constitution of India is maintainable.
The court quashed the impugned order of the lower Appellate Court and directed it to pass a consequential order on the substitution application consistent with the legal principles outlined. The parties were directed to bear their own costs. No new precedent was established beyond the direct effect of allowing the substitution application to be reconsidered and clarifying the limited scope of jurisdiction under Order 22, Rule 5 of the C.P.C.
1. Heard Shri. Shiv Sagar Singh, the learned counsel for the applicant and Sri. N.C Rajvanshi, the learned Senior Counsel for the respondents.
2. The suit was dismissed by the trial court. The plaintiff filed an appeal and during its pendency, the plaintiff died. The applicant filed an application to substitute himself as the legal heir of the deceased on the ground that he is the adopted son of the plaintiff by virtue of a registered adoption deed dated 31-1-1984. The defendants filed their objections. The lower Appellant Court, after considering the matter, rejected the application on the ground that the adoption deed had not been validly executed and simultaneously dismissed the appeal as abated. Aggrieved, the petitioner filed the present application under Article 227 of the Constitution of India. The learned counsel for the respondents Sri. N.C Rajvanshi raised preliminary objection that the application under Article 227 of the Constitution of India was not maintainable, inasmuch as the impugned order was a decree within the meaning of Section 2(2) of the C.P.C, and therefore, only an appeal would lie against the said order under Section 100 of the C.P.C The learned counsel for the respondents placed reliance upon the provision of Section 2(2) of the C.P.C and submitted that the lower Appellate Court had determined the rights of the applicant/petitioner while holding that the adoption deed had not been validly executed. The order of the lower Appellate Court was passed in consonance with the provision of Order 22, Rule 5 of the C.P.C which finally determined the question of the legal representative of the deceased plaintiff/appellant. Consequently, such determination conclusively determined the rights of the party with regard to the matter in controversy in the suit.
3. The learned counsel for the respondents further submitted that upon the dismissal of the application under Order 22, Rule 5 of the C.P.C the lower Appellate Court also simultaneously dismissed the appeal as abated. Consequently, against the said order, only an appeal could be filed, inasmuch as the said order amounted to a decree under Section 2(2) of the C.P.C
4. In support of his submission, the learned counsel placed reliance upon a decision in the case of Brij Jivan Lal v. Shiam Lal, AIR 1950 Allahabad 57 on the proposition that a Court deciding that the suit abated in its entirety amounted to decree and was appealable under Section 96 of the C.P.C The learned counsel for the respondents further placed reliance upon the decision in the case of Vidya Wati v. Chambeli, AIR 1935 Lahore 47 (2) and in the case of Udmi v. Hira, AIR 1920 Lahore 338 and the case of Dumi Chand v. Arja Nand, 1915 ILR (XXXVII) (All) 272.
5. In my opinion, the judgment cited by the learned counsel for the respondents are totally distinguishable and are not applicable to the facts and circumstances of the present case.
6. In the present case, an application under Order 22 of the C.P.C has been dismissed on the ground that the adoption deed was not executed in accordance with the Hindu Adoptions and Maintenance Act, 1956. The adjudication made by the trial court, in my opinion, does not amount to a decree as contemplated under Section 2(2) of the C.P.C nor does it finally determine the question as to who is the legal representative of the deceased under Order 22, Rule 5 of the C.P.C In any case, an enquiry under Order 22, Rule 5 of the C.P.C is only summary in nature and is not an appealable order. The question whether a person could be permitted to be brought on the record as a legal representative of the deceased is only for the purpose of continuing with the proceedings that had already begun and any adjudication arrived in the course of such enquiry under Order 22, Rule 15 of the C.P.C is not an adjudication contemplated under Section 2(2) of the C.P.C Consequently, an order passed under Order 22, Rule 5 of the C.P.C being summary in nature, could not amount to a decree, as contemplated under Section 2(2) of the C.P.C
7. In the present case, I find that the application for the substitution was rejected on a technicality and the appeal was dismissed as abated. The court below has not given any finding that the right to sue did not survive upon the applicant. The judgment cited by the learned counsel for the respondents in the case of Brij Jivan Lal v. Shiam Lal, AIR 1950 Allahabad 57 clearly indicates the distinction in the cases dealing with the question of abatement and held that where the right to sue did not survive, such an order determined formal adjudication which conclusively determined the rights of the parties and that such an order amounted to a decree and was therefore appealable. I am in complete agreement with the principles of law laid down in the aforesaid judgment.
8. In view of the aforesaid, I am of the opinion that the order of the court below, rejecting the application under Order 22, Rule 5 of the C.P.C does not amount to decree, and therefore, the present application under Article 227 of the Constitution of India is maintainable. The preliminary objection raised by the learned counsel for the respondents is thus overruled.
9. Coming to the merits of the case, I find that the lower Appellate Court had rejected the application on the ground that the adoption deed executed in favour of the applicant was not validly executed under the Hindu Adoptions and Maintenance Act, 1956. In my view, the lower Appellate Court had no jurisdiction to go into the validity and legality of the adoption deed which was executed and registered under the Hindu Adoption and Maintenance Act, in view of the provision of Section 16 of the said Act which reads as under:—
“16. Presumption as to registered documents relating to adoption:— Whenever any document registered under any law for the time being in force is produced before any court purporting to record an adoption made and is signed by the person giving and the person taking the child in adoption, the court shall presume that the adoption has been made in compliance with the provisions of this Act unless and until it is disproved.”
10. The Supreme Court in the case of Mst. Deu v. Laxmi Narayan, 1998 (8) SCC 701 held—
“In view of Section 16 aforesaid whenever any document registered under any law for the time being in force is produced before any court purporting to record an adoption made and is signed by the persons mentioned therein, the court shall presume that the adoption has been made in compliance with the provisions of the said Act unless and until it is disproved. According to us, it was not open to the defendants of the said suit for partition to collaterally challenge the said registered deed of partition. In view of Section 16 of the aforesaid Act it was open to them to disprove such deed of adoption but for that they had to take independent proceeding.”
11. In view of the aforesaid pronouncement of the Supreme Court, it is clear, that the lower Appellate Court had no jurisdiction to question the validity and legality of a document which was registered and in view of the Section 16 of the said Act, it was open to the defendant to disapprove such deed of adoption in an independent proceedings.
12. In view of the aforesaid, the impugned order passed by the lower Appellate Court cannot be sustained and is quashed.
13. The writ petition is allowed. The lower Appellate Court, is therefore, directed to pass a consequential order of the substitution application in the light of the observation made above.
14. In the facts and circumstances of the case, the parties will bear their own cost.
15. Petition allowed.
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