Appellate Courts Must Determine Legal-Representative Status Under Order XXII Rule 5 Before Rejecting Substitution.

The underlying dispute arose from Civil Suit No. 40-A/2016 concerning declaration of title and permanent injunction over property bearing Khasra No. 148/5, admeasuring 0.05 hectare, along with a house situated thereon.

The suit was dismissed by the learned Third Civil Judge, Junior Division, Bilaspur, by judgment and decree dated 19 February 2025, against which Civil Appeal No. A/45/2025 was filed before the 11th District Judge, Bilaspur.

During pendency of the appeal, Smt. Ramawati Pandey died on 26 January 2026.

The petitioner applied under Order XXII Rule 4 read with Section 151 CPC for substitution as her legal representative, relying on a Will dated 9 February 2021 allegedly executed in his favour.

The appellate court rejected the application on the ground that the genuineness of the Will had not been adjudicated by a competent court.

The petitioner challenged that order under Article 227 of the Constitution.

Whether the appellate court erred in rejecting the petitioner’s application for substitution without determining, in accordance with Order XXII Rule 5 CPC, whether he was the legal representative of the deceased?

Whether the genuineness of the Will had to be finally adjudicated in separate proceedings before the petitioner could be considered for substitution in the pending appeal?

The Court applied Article 227 of the Constitution, which empowers the High Court to exercise supervisory jurisdiction where a subordinate court has committed a jurisdictional error or material illegality.

It considered Order XXII Rule 4 CPC, governing substitution of the legal representative of a deceased defendant, and Order XXII Rule 5 CPC, which requires the court to determine any question concerning the legal representative of a deceased party.

Where such a question arises before an appellate court, Order XXII Rule 5 permits the appellate court either to determine it itself or to direct a subordinate court to conduct an inquiry and return its findings and reasons.

Section 151 CPC preserves the court’s inherent procedural powers.

The petitioner had specifically pleaded that the deceased had executed a Will in his favour and had sought substitution on that basis.

The appellate court rejected the application solely because the Will had not previously been tested by a competent court.

The High Court held that this approach failed to comply with Order XXII Rule 5 CPC.

The absence of a prior adjudication regarding the Will did not justify outright rejection; rather, the appellate court was required to determine the legal-representative question itself or obtain a finding from a subordinate court through an appropriate inquiry.

Since the appellate court had not considered or applied Order XXII Rule 5, its order suffered from material illegality and jurisdictional error warranting interference under Article 227.

The appellate court was directed to proceed in accordance with Order XXII Rule 5 CPC and thereafter decide the substitution application on its merits and in accordance with law.