Sushila Devi And Others vs Yashpal Jain

Sharad Kumar Sharma, J

The records reveal that the counsel, representing the private respondent, had put in appearance by filing his Authority in the present writ petition as back as on 18th October 2013. The suit in question itself has been instituted in 1982, and the same is yet pending consideration, because of various ancillary off shoot proceedings, which had taken place interse between the parties during the pendency of the suit. After about 6 years of pendency of the writ petition, even today the writ averments have not been denied by the private respondent by filing his counter affidavit, hence in view of the pronouncements, as laid by the Hon'ble Apex Court, as reported in AIR 1993 (2) 2592, Smt. Naseem Bano v. State of U.P. and others, the writ averments would be taken on the face of it as to be true since remained uncontroverted. The similar principal has been enunciated by the Hon'ble Apex Court in the judgement as reported in AIR 1986 SC 872, Express Newspapers Pvt. Ltd. and others v. Union of India and others, hence this Court has got no option except to proceed on the said premise that the writ averments remained uncontroverted.

The precise controversy, in case if it is to be summarised, it is that a revision being Civil Revision No. 2 of 2010, Susheela Devi and others v. Manoj Kumar Jain, was pending consideration before the Court of District Judge, Pauri Garhwal, as against the order dated 24.02.2010 deciding paper No. 170 (ka) and 184 (ga) was allowed but paper No. 173 (ga) was not decided by trial Court, which was though under challenge before it. During its pendency, the respondent herein claiming his rights on the basis of being the legal heir and son of late Urmila Jain, had filed an application under Order 1 Rule 10 of CPC on 1st December 2011 which was numbered as being paper No. 24 (ga), contending thereof that the attorney holder of late Urmila Jain, who was representing her interest in Suit No. 02 of 1982, for the relief of cancellation of sale and possession, it was being done by him on the basis of alleged registered Will dated 19.05.1999, which was said to have been executed in his favour by late Urmila Jain.

In those proceedings of the application, the case of the respondent was that earlier attorney holder of deceased Urmila Jain, i.e. Mr. Manoj Kumar Jain, since was working against her interest. Though he claimed to be holder of interest by virtue of registered Will dated 19.05.1999 executed in his favour. But later on because Manoj Jain projecting himself to be heir of late Urmila Jain on the basis of registered Will had sought to contest the proceedings of Original Suit No. 2 of 1982. The respondents impleadment application paper No. 24(ga) dated 01.02.2011, was filed on the ground that he is the legal heir and natural son who would succeed the estates of late Urmila Jain, and hence was necessary party to the proceedings for an effecting adjudication of the suit and the revision itself. In the meantime, the respondent Yashpal Jain filed an application paper No. 27C on 02.12.2012. In the application thus filed a prayer was sought that application paper No. 170 (ka) as filed earlier may be dismissed as not pressed.

The said application of Yashpal Jain paper No. 27(ga) dated 02.12.2012 was opposed by the revisionists, he also opposed the withdrawal of application paper No. 170(ka), in the application while referring to his application under Order 1 Rule 10(2) paper No. 24(ga), the respondent submitted that impleadment of Manoj Kumar Jain, on the death of late Urmila Jain on 18.05.2007, on the basis of her Will, would not be safe because the disputed property and property allegedly divested by registered Will dated 19.05.1999, are entirely different set of properties. Manoj Kumar Jain will get no right by will over the property in dispute in Suit No. 2 of 1982. Hence respondent submitted that on the basis of application paper No. 27(ga), revision deserves to be allowed. Consequently, the Revisional Court of District Judge, Pauri passed the following orders:-

''आदेश

वर्तमान दीवानी निगरानी स्वीकार की जाती है। विद्वान अवर न्यायालय द्वारा पारित आदेश दिनांकित 24.2.2010 अपास्त किया जाता है तथा श्री मनोज कुमार जैन प्रत्यर्थी द्वारा मूल वाद में योजित प्रतिस्थापन प्रार्थना पत्र 170क, प्रत्यर्थी मनोज कुमार जैन के इस निगरानी में प्रस्तुत प्रार्थना पत्र 27ग में वर्णित नॉटप्रेस के आधार पर निरस्त किया जाता है। क्योंकि प्रार्थना पत्र 184ग विलम्ब को क्षमा करने हेतु योजित किया गया था, इसलिए प्रार्थना पत्र 184ग भी तदनुसार निरस्त किया जाता है।

श्री यशपाल जैन विद्वान निम्न न्यायालय में पक्षकार बनने हेतु अपना संशोधन प्रार्थना पत्र प्रस्तुत करने के लिए स्वतन्त्र रहेंगे। आदेश की प्रति के साथ विद्वान निम्न न्यायालय का रिकार्ड वापस भेजा जाए। दोनों पक्ष दिनांक 17.12.2010 को विद्वान निम्न न्यायालय के समक्ष उपस्थित होंगे।"

(कुमकुम रानी)

जिला जल, पौड़ी"

In continuation to the order dated 02.12.2011, the respondent filed an application paper No. 259(ga) and affidavit in support of it being paper No. 260 (ga), which was opposed by respondents/defendants of the OS No. 2 of 1982 by filing objection paper No. 263(ga). The Court of Civil Judge (Senior Division), Pauri, vide its order dated 09.05.2012, had allowed the application paper No. 259 (ga), filed by respondent under Order 1 Rule 10(2), and had directed the respondent to be impleaded as defendant in the suit under Order 1 Rule 10(2) to be read with Order 22 Rule 9 of CPC.

The substituted heirs of defendant late Mangal Singh being aggrieved against the order of allowing of Order 1 Rule 10(2) of CPC vide order dated 09.05.2012, on the application of Yashpal Jain by order dated 09.05.2012 as rendered in Suit, had filed a revision, being Civil Revision No. 4 of 2012, Smt. Sushila Devi and others v. Yashpal Jain. The said revision of the defendants was allowed by the impugned judgement dated 13.12.2012, and consequently the revision thus filed was dismissed, thereby affirmed the judgement of the trial Court dated 09.05.2012, allowing paper No. 259 (ga), as filed by respondent under Order 1 Rule 10(2) of CPC, directing him to be made party based on the fact of being legal heir. Hence, the present petition which was filed on 22.01.2013.

Challenge given by the defendant/petitioners to the impugned order was on the ground that once in the suit Manoj Kumar Jain was already made party as the representative of late Urmila Jain, on basis of registered Will dated 19.05.1999, which was the fact which already earlier stood admitted by Yashpal Jain, he could have filed application under Order 1 Rule 10(2) CPC on the basis of being legal heir (son) of late Urmila Jain, the petitioners further submitted that the application couldn't have been allowed because it was Yashpal Jain himself who had filed an affidavit in support of substitution filed by Manoj Kumar Jain, based on a registered Will dated 19.05.1999, where he fortified the fact that it was Manoj Kumar Jain, who would in fact actually succeed late Mrs. Urmila Jain.

Besides this, if the propriety of the application paper No. 259 (ga) is also taken into consideration, it would be treated to have been filed much belatedly, because respondent when he had filed an affidavit supporting substitution of Manoj Kumar Jain, it would mean that he had the knowledge of pending Suit No. 2 of 1982, in that eventuality, if he had any right or interest vested in him over the property which was subject matter of Suit, as a consequence of being heir of late Urmila Jain, then he should have filed an application within the period of limitation or within reasonable time of death of late Urmila Jain on 18.05.2007, thus under these circumstances, direction by the impugned order invoking Order 22 Rule 9 would be without competence and contrary to the provisions of law.

The controversy of impleadment of respondent in the suit is also to be seen from the view point of decision rendered on an application paper No. 27C filed by respondent seeking to withdraw the application for substitution paper No. 170(ga), on which the order was passed on 02.12.2011 in Revision No. 2 of 2011.

Under these circumstances, without expressing any positive opinion with regards to as to what would be impact of flow of a right to the respondent on the basis of being heir of late Urmila Jain, if at all, it was emanating from the registered Will or by natural succession, this Court is of the view that, implement application under Order 1 Rule 10 of CPC, on the basis of being the heir, could not have been entertained in the circumstances, where a Registered Will in favour of the substituted heir Manoj Kumar Jain, was already considered by the learned trial Court while considering the application filed under Order 22 Rules 3 and 4. Apart from it, since the facts, as raised in the writ petition remained uncontroverted, by filing any counter affidavit, the writ petition deserves to be allowed and the impugned order dated 9th May 2012, allowing the impleadment application of the respondent in Suit No. 2 of 1982, is quashed and consequently, the order dated 3rd December 2012, as rendered by the District Judge in Civil Revision No. 4 of 2012 is also quashed and as a resultant thereto, the impleadment application filed by the present respondent being application Paper No. 259 (ga) would stand rejected.

Since the suit itself happens to be of 1982, the learned Trial Court is directed to conclude the proceedings of the said Suit itself which as of now is pending since over 35 years within a period of 9 months from the date of production of the certified copy of this order. It is expected that the time period, as settled now would be strictly adhered to by the Court below for deciding the Suit.

Subject to the above observation the writ petition stands allowed.