Ram Narayan vs Sunil Kandwal & Another

Sharad Kumar Sharma, J

The petitioner before this Court, in a proceedings of Miscellaneous Case No. 2 of 2009 'Sunil Kandwal vs. Ishwar Dass' had, on the death of Ishwar Dass, i.e. plaintiff to Suit No. 14 of 2008 'Ishawar Dass vs. Ashok Kandwal & Others' has sought himself to be impleaded in the Civil Miscellaneous Appeal No. 2 of 2009 'Sunil Kandwal vs. Ishwari Dass & Others' by filing an appropriate application for impleadment/substitution under Order 22 Rule 3 to be read with Order 6 Rule 17 of Code of Civil Procedure under the strength of the registered will dated 04.08.2008, which he claimed was that it was executed by Ishwar Dass in his favour in relation to property, which was subject matter o Suit. In the miscellaneous appeal itself the present respondent no. 2 has also filed an application on 18.07.2009 for seeking herself to be substituted/impleaded under the strength of unregistered will dated 17.11.2007 allegedly according to her was claimed to have been executed by Ishwar Dass in her favour. The Appellate Court surprisingly by the order dated 08.11.2010 had allowed the substitution/impleadment application of both, i.e. the petitioners on the basis of registered will dated 04.08.2008 and respondent no. 2 on the basis of unregistered will dated 17.11.2007. They both have been impleaded in Miscellaneous Appeal No. 2 of 2009 as party to the proceedings.

Upto this stage there is no dispute inter se between the parties. The Appellate Court after allowing the impleadment application on 08.11.2010, in order to determine the propriety of the rival claim for substitution has remitted the matter back to the Trial Court for considering it afresh, while passing an order under Order 22 Rule 5, which itself contains a provision pertaining to considering the disputed claim of substitution of heirs in a proceeding pending before the Trial Court has to decide the matter under Order 22 Rule 5 after hearing the parties concerned. The learned Trial Court by an order dated 22.12.2010 in compliance of order dated 08.11.2010, has remitted the matter back to the Appellate Court with an observation that since the District Judge has already allowed the impleadment by an order dated 08.11.2010, consequently, bringing on record both the petitioners and respondent no. 2 as party to the proceedings. Hence, as a matter of fact, at this stage after the order of remand for reconsideration of the application under Order 22 Rule 5 of CPC, is not required for the reason that the impleadment/substitution already stands allowed in Miscellaneous Appeal No. 2 of 2009 by the orders of the District Judge, which is a court superior to the court of Civil Judge (J.D.), Narendra Nagar, Tehri Garhwal.

However, by the impugned order, which is under challenge before this Court, i.e. 30.04.2011, when the miscellaneous appeal was considered under the provisions contained under Order 43 Rule 1(r) of C.P.C, the Appellate Court has made certain observations with regards to the sanctity of the registered will dated 04.08.2008.

The petitioner, who was an applicant and who had been ultimately impleaded as party on the basis of their registered will dated 04.08.2008 apprehends that any stray finding, which has been recorded by the Appellate Court at the stage of Order 43 Rule 1 (r) pertaining to the veracity of the will dated 04.08.2008, it may have an effect and bearing on his claim on merits when the trial is itself decided on merits. In such an eventuality, what he wants to safeguard by preferring the present writ petition as against the impugned order dated 03.04.2011, is that the propriety of the order dated 30.04.2011 may be sustained, but as far as any stray or remote finding, which has been recorded pertaining to the registered will dated 04.08.2008 thate may not create any impediment on consideration of the petitioner's right in the Suit when it is decided on its own merits.

Consequently, this writ petition is being disposed of with a direction that irrespective of whatsoever finding has been recorded by the District Judge in the order dated 30.08.2011 in relation to the will dated 04.08.2008 that will not be influencing the minds of the Trial Court when individual rights are being considered on its own merit and that will be decided by the Trial Court without being uninfluenced by any of the findings recorded by the Court of District Judge, in relation to the will dated 04.08.2008 as the said determination or consideration of Will dated 04.08.2008 would be treated to tentative consideration only for the purposes of deciding Civil Miscellaneous Appeal No. 2 of 2009.

Subject to the above observation, the writ petition stands disposed of. Since it is a Suit, which is pending since 2008, the learned Trial Court is requested to decide the Suit as expeditiously as possible preferably, but not later than a period of one year from the date of production of certified copy of this order.