1 CGHC010339232026 2026:CGHC:39257 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR WP227 No. 1166 of 2026 • Ramavati Pandey (Died) Through Lrs Arjun Mishra S/o Shri Bhargunath Mishra Aged About 52 Years R/o Ward No.10. Devrikhurd Tahsil And Distt- Bilaspur (C.G.) ... Petitioner versus 1. Indrasan Prasad Pandey (Died) Through Lrs Nandini Pandey W/o Indrasan Pandey Aged About 69 Years R/o B.J.P. Office Karbala Road Bilaspur Tahsil And Distt- Bilaspur (C.G.) (Amended But Not Mentioned In Order 03/08/26 Indrasan Prasad Pandey Aged About 68 S/o Late Santsharan Pandey R/o Tikrapara, Bilaspur (C.G.), At Present R/o Near B.J.P. Office Karbala Road Bilaspur (C.G.). 2. State Of Chhattisgarh Through- Collector, Bilaspur Distt- Bilaspur (C.G.). ... Respondents For Petitioner : Mr. Neeraj Kumar Sharma, Advocate. For Respondent No.1 : Mr. Shalvik Tiwari, Advocate on Caveat. For State/Respondent No.2 : Mr. Ashutosh Trivedi, P.L. Hon’ble Shri Justice Ravindra Kumar Agrawal Order on Board 07/09/2026 1. Heard. 2. The present writ petition has been preferred by the petitioner under Article 227 of the Constitution of India, challenging the impugned order dated 03.08.2026 passed by the learned 11th District Judge, Bilaspur, District Bilaspur (C.G.) in Civil Appeal No.A/45/2025, whereby the application filed by the petitioner for substitution of his name as legal representatives of the DEEPTI JHA Digitally signed by DEEPTI JHA 2 deceased/respondent No.1 in the appeal pending before the appellate Court has been rejected. 3. Learned counsel for the petitioner would submit that the respondents have prosecuted a suit before the learned Third Civil Judge, Junior Division Bilaspur (C.G.) bearing Civil Suit No.40-A/2016, in which, Ramawati Pandey was the defendant No.1. The said suit was filed for declaration of title and permanent injunction over the suit property bearing Khasra No.148/5 admeasuring 0.05 hectare and house situated upon it. The suit filed by the petitioner was dismissed by the learned trial Court vide impugned judgment and decree dated 19.02.2025, against which the first appeal has been preferred by the petitioner before the learned 11th District Judge, Bilaspur, District Bilaspur (C.G.) bearing Civil Appeal No.A/45/2025. During the pendency of the first appeal, the respondent/Ramawati Pandey has died on 26.01.2026 and after her death, the petitioner filed an application for substitution of his name in place of her on the basis of Will dated 09.02.2021 executed by Smt. Ramawati Pandey in his favour and being the legal representative of the deceased/respondent No.1/Smt. Ramawati Pandey. He would further submit that the said application filed by the petitioner under Order 22 Rule 4 read with Section 151 of CPC has been rejected by the learned appellate Court vide impugned order holding therein, that the genuineness of the Will has not ben considered in any proceedings and the petitioner could not be treated as legal representative of the deceased/respondent No.1. He would also submits that the learned appellate Court is required to determine the question of the legal representative by calling a report either from the learned trial Court or itself examined from the learned trial Court as provided under Order 22 Rule 5 of CPC. Without considering the provisions of Order 22 Rule 5 of CPC, the learned appellate Court has rejected the application filed by the petitioner, therefore, the appellate Court has not exercised its jurisdiction and the impugned order 3 suffers from material illegality, which is liable to be set aside. Hence, the petition may be allowed. 4. On the other hand, learned counsel appearing for the respondent No.1 opposes the submissions made by the counsel for the petitioner and submits that the learned appellate Court has rightly rejected the application filed by the petitioner, as there are material discrepancies in claiming the legal heirship of the deceased/respondent No.1 (Smt. Ramawati Pandey), therefore, the petition filed by the petitioner is liable to be dismissed. 5. I have heard learned counsel for the respective parties and perused the material available on record with utmost circumspection. 6. From perusal of the application (Annexure-P/3) filed by the petitioner before the learned appellate Court, it transpires that the respondent No.1/Smt. Ramawati Pandey has died on 26.01.2026 and there is averment in the application that she has executed a Will in favour of the petitioner on 09.02.2021 and bequeath her entire property in his favour. By virtue of the said Will, he became the title and possession holder of the suit property, therefore, he moved an application for substitution of his name in place of deceased/respondent No.1/Smt. Ramawati Pandey. 7. Order 22 Rule 5 of CPC provided the determination of question as to legal representatives, which reads as under:- “5. Determination of question as to legal representative. – Where a question arises as to whether any person is or is not the legal representative of a deceased plaintiff or a deceased defendant, such question shall be determined by the Court: [Provided that where such question arises before an Appellate Court, that Court may, before determining the question, direct any subordinate Court to try the question and to return the records together with evidence, if any, recorded at such 4 trial, its findings and reasons therefor, and the Appellate Court may take the same into consideration in determining the question.]” 8. Coming back to the order impugned dated 03.08.2026 passed by the learned appellate Court, it clearly transpires that before rejecting the application filed by the petitioner for substitution of his name in place of deceased/respondent No.1/Smt. Ramawati Pandey, the provisions of Order 22 Rule 5 of CPC has not been considered by the learned appellate Court and has rejected the application holding therein, that the Will allegedly executed in favour of the petitioner has not been tested by any of the Competent Court. However, the provisions of Order 22 Rule 5 of CPC clearly provides that, if any, question arises before an appellate Court, that Court may, before determining the question, direct any subordinate Court to try the question and to return the records together with evidence, if any, recorded at such trial, its findings and reasons therefor, and the Appellate Court may take the same into consideration in determining the question. Therefore, this Court is of the considered opinion that the impugned order suffers from material illegality and jurisdictional error. Accordingly, the impugned order dated 03.08.2026 passed by the learned 11th District Judge, Bilaspur, District Bilaspur (C.G.) deserves to be and is hereby set aside. 9. The learned appellate Court is directed to proceed the case in accordance with the provisions of Order 22 Rule 5 of CPC and then, only decide the same on merits in accordance with law. 10. Accordingly, the instant writ petition is allowed. Sd/- (Ravindra Kumar Agrawal) Judge Deepti Jha