- 1 - ® IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH DATED THIS THE18H DAY OF JANUARY2017BEFORE: THE HON’BLE MR. JUSTICE G.NARENDAR WRIT PETITION NO.109114/2016 (GM-CPC) BETWEEN SHRI BHARAMAPPA S/O PARAPPA SAVADI AGE:
57. YEARS, OCC. AGRICULTURE R/O TERDAL-587 315, TQ. JAMKHANDI DIST. BAGALKOT (BY SRI.M.G.NAGANURI, ADVOCATE) ... PETITIONER AND1 SMT.AKKATAI W/O SATAPPA RAMTEERTH AGE66YEARS, OCC. HOUSEHOLD R/O HARUGERI-591 220 TALUKA: RAIBAG, DIST. BELAGAVI2 SRI.BAHUBALI S/O SATAPPA RAMTEERTH AGE35YEARS, OCC. AGRICULTURE R/O HARUGERI-591 220 TALUKA RAIBAG, DIST. BELAGAVI3 SMT.CHINNAWA W/O SIDDAPPA GUBACHI AGE71YEARS, OCC. HOUSEHOLD R/O NAGANUR-587 301 TQ. JAMKHANDI, DIST. BAGALKOT4 SRI.ALLAPPA BHUJABALI SAVADI AGE51YEARS, OCC. AGRICULTURE R/O TERDAL-587 315 TQ.JAMKHANDI, DIST. BAGALKOT - 2 - 5. SRI.BHOOPAL BHUJABALI SAVADI AGE49YEARS, OCC. AGRICULTURE R/O TERDAL-587 315 TQ. JAMKAHNDI, DIST. BAGALKOT6 SRI.DHANPAL BHUJABALI SAVADI AGE47YEARS, OCC. AGRICULTURE R/O TERDAL-587 315 TQ. JAMKHANDI, DIST. BAGALKOT7 SRI.SHRIPAL MAGEPPA SAVADI AGE45YEARS, OCC. AGRICULTURE R/O TERDAL-587 315 TQ. JAMKHANDI, DIST. BAGALKOT BHIMAPPA ALLAPPA SAVADI SINCE DECEASED BY HIS LRS:
8. SRI.PRABHU S/O BHIMAPPA SAVADI AGE61YEARS, OCC. AGRICULTURE R/O FARM HOUSE, TERDAL-587 315 TALUKA. JAMKHANDI, DIST. BAGALKOT NEMANNA BHIMAPPA SAVADI9 SMT.PAMMAWA W/O NEMANNA SAVADI AGE56YEARS, OCC. HOUSEHOLD R/O TERDAL-587 315, TALUKA. JAMKHANDI DIST. BAGALKOT10 SMT.SHALAWA W/O NAGAPPA GUBACHI AGE46YEARS, OCC. HOUSEHOLD R/O TERDAL-587 315 TALUKA: JAMKHANDI, DIST. BAGALKOT11 SRI.MAGEPPA NEMANNA SAVADI AGE25YEARS, OCC. STUDENT R/O TERDAL-587 315 TALUKA. JAMKHANDI, DIST. BAGALKOT12 BHAGYASHREE D/O NEMANNA SAVADI AGE21YEARS, OCC.STUDENT - 3 - R/O TERDAL-587 315 TALUKA: JAMKHANDI, DIST. BAGALKOT13 SRI.MAHABAL NEMANNA SAVADI AGE18YEARS, OCC.STUDENT R/O TERDAL-587 315 TALUKA JAMKHANDI, DIST. BAGALKOT14 SRI.PRAKASH S/O BHIMAPPA SAVADI AGE44YEARS, OCC.AGRICULTURE R/O FARM HOUSE, TERDAL-587 315 TALUKA JAMKHANDI, DIST. BAGALKOT15 SRI.ASHOK KALLAPPA HADKAR AGE59YEARS, OCC. AGRICULTURE R/O TERDAL-587 315 TQ. JAMKHANDI, DIST. BAGALKOT16 SRI.MAIBOOB KARIMSAB TAHASILDAR AGE61YEARS, OCC. AGRICULTURE R/O TERDAL-587 315 TQ. JAMKHANDI, DIST. BAGALKOT. ... RESPONDENTS (BY SRI.M.T.BHANGI, ADV. FOR C/R1; SRI.PRASHANT S KADADEVAR, ADV. FOR C/R2; NOTICE TO R3 – R16 – DISPENSED WITH) * * * THIS WRIT PETITION IS FILED UNDER ARTICLES226AND227OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER
DATED0211.2016 PASSED BY THE CIVIL JUDGE, BANHATTI ON IN O.S. NO.96/2005 PRODUCED AT ANNEXURE-F. I.A. NO.XX THIS PETITION COMING ON FOR PRELIMINARY HEARING, THIS DAY, THE COURT MADE THE FOLLOWING: - 4 - ORDER
Learned counsel for the petitioner has filed a memo stating that service of notice to respondent Nos.3 to 16 may be dispensed with since they are not contesting respondents. Memo is taken on record and service of notice to respondent Nos.3 to 16 is dispensed with.
2. Heard the learned counsel for the petitioner and the respondents.
3. Respondent No.1 herein is the plaintiff whereas, the petitioner herein who is defendant No.1 is her brother and defendant No.2 is their mother. The suit came to be preferred by respondent No.1 herein for the relief of partition and separate possession and that during the pendency of the proceedings, defendant No.2 passed away.
4. An application came to be preferred by the plaintiff i.e., 1st respondent herein under the provisions of Order 22 Rules 3 and 4 r/w. Section 151 CPC., praying to the trial Court to permit her to bring on record, the legatee, - 5 - under the registered Will said to have been executed by the deceased 2nd defendant.
5. The same was resisted by the petitioner’s herein and the other defendants. The Court below by its considered order was pleased to reject I.A. No.12 and while rejecting the application was pleased to hold that the applicant had not stated as to how the proposed defendant is the legal representative of the deceased second defendant and that a mere allegation of a Will having been executed would not constitute a ground to construe him as a legal representative and it further observed that if necessary an application can be moved to have the said legatee impleaded as necessary party to the proceedings and the applicant thereafter moved an application i.e., I.A. No.20 under Order 1 Rule 10(2) read with Order 22 Rule 10 and Section 151 of CPC praying to implead the proposed party as defendant No.11.
6. The trial Court strangely appears to have permitted the parties to adduce evidence on the said application and it is fairly admitted that no issue was framed prior to leading of the evidence, The trial Court has - 6 - also permitted the first defendant/petitioner herein to adduce rebuttal evidence and it is seen that the proposed party got himself examined and also got examined two other witnesses on his behalf and he also got marked Exs.D1 and D2. Defendant No.1 i.e., the present petitioner has adduced rebuttal evidence and got marked Exs.D3 to D5. Thereafter, the Court below has appreciated the citations placed before it and it has been pleased to hold that a prima facie case for impleading the proposed defendant No.11 is made out on the strength of the material on record and hence it was pleased to allow the application and permit the impleadment of the said person.
7. In the above facts and circumstances, the point that arises for consideration is; Whether the application preferred by the plaintiff under Order 1 Rule 10(2) r/w. Order 22 Rule 10 of C.P.C. is maintainable in the absence of an application by the interested party i.e., the proposed party?. - 7 - 8. Learned counsel for the petitioner would submit that the trial Court has seriously erred in allowing the parties to adduce evidence, which otherwise would have been a summary proceeding, and that the Court below erred in recording the evidence even without formulating an appropriate issue. He would also further contend that the application itself is misconceived and that the application ought to have been rejected by permitting the proposed defendant to make an application by himself. Per contra, the learned counsel for the respondents would submit that in a similar circumstances and facts, this Court by its order dated 05.09.2013 rendered in W.P.No.76420/2013 was pleased to uphold the order allowing the application preferred by the plaintiff mother to have her legatee son impleaded as party defendant to the suit.
9. A bare reading of the provisions of Order 1 Rule 10(2) of C.P.C. would obviate any in depth investigation for determination of the Point for consideration. Order 1 Rule 10(2) of C.P.C. read as follows: - 8 - “10(1) x x x x x (2) Court may strike out or add parties.- The Court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the Court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added.” The provisions of sub-rule (2) clearly mandates and vests a discretion in the Court to add or delete a party whom it deems necessary for effectually and completely adjudicating and settling all the disputes.
10. In the instant case, it is not disputed that the property allegedly bequeathed in favour of the proposed defendant are part of the suit property, over which the plaintiff is seeking for partition. A decree, without arraying the legatee, would stand frustrated and would only result in - 9 - multiplicity of proceedings. Hence, the proposed defendant is a necessary party for complete adjudication of the dispute subsisting between the parties and further he being an interested person, having been bequeathed the right to some of the properties, it is just and necessary and in the interest of justice, he be heard before a decree, affecting the properties bequeathed in his favour, is passed by the Court.
11. Hence, this Court is of the considered opinion that the contention that application by the plaintiff to implead the alleged legatee is not maintainable is devoid of merits.
12. Learned counsel for the petitioner would contend that the trial Court ought not to look into the evidence recorded by it for the purpose of considering the application as no issue has been framed. The apprehension of the petitioner though not fully justified by the impugned order, yet as stated supra the interlocutory application ought to have been tried as a summary proceedings but for reasons best known to it, the trial Court has permitted the parties to adduce evidence and rebuttal evidence. Mere - 10 - production of the registered Will would have sufficed to enable the Court to permit him to be impleaded as party defendant. A reading of the impugned order would reveal that the trial Court has not relied either on the evidence/deposition or cross-examination to arrive at the conclusion that the party is a necessary party to the proceedings. The Court below had it wanted to rely on the same, it would have framed an appropriate issue regarding the Will and it necessarily would have called upon the proposed defendant to prove the Will.
13. Be that as it may, if the proposed defendant is permitted to come on record, he necessarily would have to enter and set out his pleadings, in which event he would be required to enter the witness box and depose in support of his pleadings. That apart, the Court below has not pronounced anything regarding the genuineness or the validity of the Will nor has it held that the Will stands proved in accordance with law. Hence, to allay the apprehension of the petitioner and to meet the ends of justice, it would be appropriate if the petitioner is permitted to recall the witnesses for further cross-examination, if he - 11 - so desires. The Court in the case of Ramesh Vs. Pradeep Vasant Desai, reported in ILR2014KAR579 relied upon the law laid down by the Hon’ble Apex Court in the case of Suresh Kumar Bansal Vs. Krishna Bansal, reported in AIR2010SC344 in the matter of impleadment of legal representatives in an eviction petition wherein the plaintiff died during the pendency of the suit and the widow of the deceased, who is the natural heir of the deceased and another claiming to be the legatee under the Will of deceased plaintiff sought impleadment, the legatees having not been permitted to come on record on the ground that the execution of the Will was suspicious, while holding that the same was improper and would lead to further litigations, it has been held as follows:
"9. The Code of Civil Procedure enjoins various provisions only for the purpose of avoiding multiplicity of proceedings and for adjudicating of related disputes in the same proceedings, the parties cannot be driven 10 different Courts or to institute different proceedings touching on different facets of the same major issue. Such a course of action will result in conflicting judgments and instead of resolving the disputes, they would - 12 - end up in creation of confusion and conflict. It is now well settled that determination of the question as to who is the legal representatives of the deceased plaintiff or defendant under Order XXII Rule 5 of the Code of Civil Procedure is only for the purposes of bringing legal representatives on record for the conducting of those legal proceedings only and does not operate as res judicata and the inter se dispute between the rival legal representatives has to be independently tried and decided in probate proceedings. If this is allowed to be carried on for a decision of an eviction suit or other allied suits, the suits would be delayed, by which only the tenants will be benefited. In order to shorten the litigation and to consider the rival claims of the parties, in our view, the proper course to follow is to bring all the heirs and legal representatives of the deceased plaintiff on record including the legal representatives who are claiming on the basis of the Will of the deceased plaintiff so that all the legal representatives namely, the appellant and the natural heirs and legal representatives of the deceased plaintiff can represent the estate of the deceased for the ultimate benefit of the real legal representatives. If this process is followed, this would also avoid delay in disposal of the suit. In view of our discussions made hereinabove, we are, - 13 - therefore, of the view that the High Court as well as the trial Court were not at all justified in rejecting the application for impleadment filed at the instance of the appellant based on the alleged Will of the deceased plaintiff at this stage of the proceedings.” 14. At this juncture, the learned counsel for the respondents would rely upon the judgment of the Hon’ble Apex Court in the case of Dashrath Rao Kate Vs. Brij Mohan Srivastava reported in AIR2010SC897and would submit that the parties, more particularly the proposed defendants, who have tendered evidence as D.W.1, D.W.2 and D.W.3, ought not to be made to enter the witness box again and again, to tender evidence as they have already tendered evidence in the course of consideration of I.A. No.20 for impleadment of defendant No.11. He would submit that calling upon the parties repeatedly to enter witness box amounts to harassment, as held by the Hon’ble Apex Court. On a query from this Court as to whether the Court below has rendered a finding that the Will is proved in accordance with law. He would submit that no such finding has been rendered by the Court. He - 14 - would further fairly admit that no issue regarding validity or genuineness of the Will was framed before the parties adduced evidence.
15. In the citation relied upon by the learned counsel for the respondents, the Hon’ble Apex Court has held that in the enquiry under Order 22 Rule 5 of CPC., the Court had rendered a finding that the appellants status as legatee was proved. In the instant case on hand, neither a issue has been framed nor was the Will placed before the Court prior to filing of the impleading application. Technically speaking, the Will was not a suit document and has only come on record during the enquiry on the application preferred under Order 1 Rule 10 of CPC and the parties are required to be given an opportunity to look into the said document and set up a case calling the Will in question. Hence, the said contention that the parties cannot be or ought not to be called upon to tender evidence or step into witness box cannot be countenanced. The Hon’ble Apex Court has enunciated the law in a different set of facts. The Hon’ble Apex Court in para-8 was pleased to observe as follows: - 15 - “8. As a legal position, it cannot be disputed that normally, an enquiry under Order 22 Rule 5, CPC is of a summary nature and findings therein cannot amount to res judicata, however, that legal position is true only in respect of those parties, who set up a rival claim against the legatee. For example, here, there were two other persons, they being Ramesh and Arun Kate, who were joined in the Civil Revision as the legal representatives of Sukhiabai. The finding on the Will in the order dated 9.9.1997 passed by the Trial Court could not become final as against them or for that matter, anybody else, claiming a rival title to the property, vis-a-vis, the appellant herein, and, therefore, to that extent, the observations of the High Court are correct. However, it could not be expected that when the question regarding the Will was gone into in a detailed enquiry, where the evidence was recorded not only of the appellant, but also of the attesting witness of the Will and where these witnesses were thoroughly cross-examined and where the defendant also examined himself and tried to prove that the Will was a false document and it was held that he had utterly failed in proving that the document was false, particularly because the document was fully proved by the appellant and his attesting witness, it would be futile to expect - 16 - the witness to lead that evidence again in the main suit. It was at the instance of the High Court in the revisional jurisdiction that the direction was given that the Trial Court should first decide as to whether who could be the legal representative of Sukhiabai and after complete enquiry, the Trial Court held the Will to be proved. The Will was not only attacked by the appellant on its proof, but also on merits, inasmuch as the respondent/defendant went on to contend before the Trial Court during that enquiry that the Will was unnatural, unfair and was executed in doubtful circumstances. The respondent/ defendant had also relied on the reported decision of this Court in Girja Dutt Singh Vs. Gangotri Datt Singh [AIR1955SC346. The Trial Court, however, rejected this contention. On the other hand, the Trial Court found on merits that the appellant was living with Sukhiabai and Sukhiabai had adopted him orally. Evidence of Ramesh Kate was also referred to, who asserted about this fact. Reference was also made to the evidence of Sukihabai herself in the Rent Control Case No.14/90-91 that she had adopted Dashrath Rao (appellant herein) and that Dashrath Rao lived with her. Clear cut findings were given by the High Court in these proceedings that from the evidence of Prabhakar Rao (PW-2), the attesting witness, it was clear that Sukhiabai - 17 - had signed in his presence and he had also signed in present of Sukhiabai and had also seen the other attesting witness signing the Will and attesting the same. Not only this, but the Trial Court also wrote a finding that the objection raised by the defendant (respondent herein) that Sukhiabai was not in a position to understand the Will on account of her poor physical condition, was also rejected by the Trial Court. It was also noted that the Will was executed six years prior to her death and as such, there was no question of Sukhiabai being suffered with any mental or physical disability for executing the Will. Therefore, it is on this basis that the Will was held to be proved. Once this was the position and in the same suit, the further evidence was led, there was no point on the part of the appellant/plaintiff to repeat all this evidence all over again.” Hence, I proceed to pass the following: ORDER
Accordingly, the writ petition is disposed off by confirming the order passed by the trial Court on I.A. No.20 and further permitting the petitioner to make an appropriate application to recall the defendant No.11 and other witnesses i.e., D.W.1, D.W.2 and D.W.3, who are - 18 - said to have spoken about the Will and to subject them to cross-examination. Further, a direction is issued to the trial Court to frame additional issue by placing the burden of proof of proving the Will on the defendant No.11. The writ petition stands disposed off accordingly. Sd/- JUDGE Ksm*/Vnp*