Swathi vs Sindhu

A.S. Bopanna, J.—The petitioner is before this Court assailing the order dated 17.10.2014 passed on LA. in O.S. No. 7/2000.

The petitioner herein is the second plaintiff in the said suit. The second defendant who is stated to be the purchaser of the property has been impleaded to the suit and the relief in prayer (c) has been sought against the second defendant.

During the pendency of the suit, the sixth respondent herein has filed an application under Order 1 Rule 10 r/w Section 151 of Civil Procedure Code seeking that he be impleaded as a defendant to the suit in order to prosecute the defence in the place of the second defendant. The Court below on considering the rival contention has allowed the application. The petitioner claiming to be aggrieved by the same is before this Court.

The learned Senior counsel representing the learned counsel for the petitioner would contend that the Court below was not justified. It is his case that when the applicant claims to be the son of the second defendant and in the application he contends that the second defendant is missing from 22.07.2010, no presumption in law has arisen to enable the applicant to come on record as a legal representative of the second defendant. It is also his case that the relief as prayed in the plaint is only against the second defendant and the applicant even if impleaded, cannot putforth any better case as against the one that could have been putforth by the second defendant. It is therefore contended that the Trial Court has committed an error in allowing the application and the order is liable to be set aside.

In the light of the contention, I have perused the order impugned herein. In that light, a further perusal of the plaint would indicate that the second defendant is the person who had purchased the property regarding which the plaintiffs are claiming partition after holding that the sale deed and the judgment as stated in the prayer are not binding on the plaintiffs. In that light, the right to the property as purchased by the second defendant would also be one of the issues therein. The applicant has produced materials before the Trial Court to indicate that the claim being made by him that the second defendant is not heard of is substantiated by records inasmuch as a police complaint has been lodged and paper publication has also been issued.

It is no doubt true, at this juncture, no presumption in law about the death of the second defendant has arisen. Even if that aspect is kept in view, the applicant at this juncture has not sought to come on record as legal representative of the second defendant, but would claim that he has interest in the property which had been purchased by the second defendant and is therefore, a necessary party to the suit to defend the suit in place of the second defendant in view of his non-availability. In such circumstance, the Court below in any event would be justified in permitting the applicant to come on record as the sixth defendant. However, the stand as has already been taken by the second defendant is the case that would have to be putforth by the sixth defendant and the suit would have to proceed accordingly. Therefore, I see no reason to interfere with the order impugned herein.

In terms of the above, the writ petition stands disposed of.