Court No. - 36
Case :- MATTERS UNDER ARTICLE 227 No. - 573 of 2019 Petitioner :- Surya Kumar And Another Respondent :- Additional District Judge/ Special Judge No.1 And 11 Others Counsel for Petitioner :- Ram Pratap Yadav Counsel for Respondent :- C.S.C.,Ashish Agrawal
Hon'ble Mrs. Sunita Agarwal,J.
Heard learned counsel for the petitioners and perused the records.
The present petition is directed against the order dated 6.3.2018 whereby application 141Ga read with affidavit 142Ga under Order 1 Rule 10 CPC read with section 151 CPC has been allowed and the trial court has observed that any issue in relation to the suit property can be decided after evidences are led by the parties. The revision filed against the said order namely Civil Revision No.63 of 2018, has also been rejected.
Submission of learned counsel for the petitioners/plaintiffs is that the instant suit namely Original Suit No.1256 of 1989 has been filed primarily seeking to restrain the defendants not to dispossess the plaintiff in view of the order dated 9.11.1997 of dispossession passed against the plaintiffs. A perusal of the plaint indicates that the defendant no.1 is the State of U.P. through Collector, Varanasi and defendant no.2 is the Union Bank of India, defendant no.3 is the auction purchaser. The suit property had been auctioned in an auction conducted by the order dated 9.11.1999 and possession certificate dated 18.10.1989 had already been issued in favour of defendant no.3.
From the relief and the averments of the plaint, it is evident that the plaintiffs have not prayed any relief against the defendants third set i.e. defendant no.4 to 8. The heirs of defendant no.3 (second set) have been impleaded as defendant no.3/4. It further appears from the record that in paragraph 2 of the plaint, the plaintiffs have stated that the suit property is of co-ownership, of both the plaintiff and defendant no.4.
After death of defendant no.4, the plaintiff no.2 had filed substitution application under Order 22 Rule 4 read with Order 6 Rule 17 read with 151 CPC claiming him to be the heir and representative of the deceased defendant no.4 on the basis of Will dated 1.4.2017, allegedly executed by defendant no.4. It appears that the said application was initially allowed. Thereafter, the heirs of defendant no.4 namely his widow and sons moved an application 141(Ga) under Order 1 Rule 10 CPC read with section 151 CPC claiming to be impleaded being natural heirs and legal representatives of defendant no.4 and submitting that the Will dated 1.4.2017 pressed by the plaintiffs was a forged document.
The trial court has allowed Order 1 Rule 10 application impleading the natural heirs of defendant no.4 on record with the observation that the question as to the merits of the Will would be seen at the later stage after evidence are led by the parties.
This order is being challenged in the present petition with the observation that the scope of Order 1 Rule 10 CPC is limited. In a suit where relief is primarily against the defendant nos.1 to 3, there was no occasion for the trial Court to implead strangers to the suit. The heirs of defendant no.4 are neither necessary nor proper party to the suit. Moreover, substitution to represent the right of defendant no.4 in the suit property has been filed by the plaintiffs on the basis of Will which has earlier been allowed. Submission is that no recall has been filed by the heirs of the defendant no.4 nor they challenged the order of substitution of the plaintiffs.
All these submissions of learned counsel for the petitioners are found misconceived. Before recording reasons for the said conclusion, it would also be noteworthy that the trial court has also erred in making observation in the order dated 6.3.2018 that the issue relating to validity of the Will dated 1.4.2017, allegedly executed by defendant no.4, would be decided in the suit on the evidence led by the parties at a later stage.
Having gone through the plaint averments and the plaint relief, it is evident that the plaintiffs are seeking relief against the defendant no.1, 2 and 3. Other defendant namely defendant No.4 was proforma party being co-owner of the suit property. As per plaint averments paragraph 2 of the plaint, the present suit is not a title suit in relation to the suit property and no adjudication is required to be made as to the right of plaintiffs vis-a-vis defendant no.4 in the suit property. The question as to the entitlement of heirs of defendant no.4 or plaintiff no.2 to the property, is not a subject matter of adjudication in the instant suit.
It appears that by raising a dispute with regard to title of the suit property in the instant suit, the plaintiffs are trying to digress the issue. The trial court has also not taken care too before delving much on the issue of impleadments/substitution of defendant no.4 and has completely ignored that the contesting defendants in the instant suit, are defendants 1, 2 and 3/1, 3/4 (heirs of defendant no.3) namely bank and the auction purchaser. In any case, the validity of Will dated 1.4.2017 is not a subject matter of adjudication in the instant suit.
Since defendant no.4 is a proforma party in the suit, this Court finds that by mere substitution/impleadment of his heirs on record of the instant, the nature of the suit will not change and it will not turn into a suit for title. The Court, therefore, is of the opinion that though no interference is required in the order impugned, but the observations made in it that the issue relating to the title of the suit property raised by one of the plaintiffs and the heirs of defendant no.4 would be subject matter of adjudication in the instant suit, are liable to be expunged.
The trial court is, accordingly, directed to proceed with the suit keeping in mind the plaint averments and the relief sought therein. In any case it shall not convert the instant suit into a title suit between one of the plaintiff and defendant no.4 in the garb of the plea of the plaintiff no.2 that he had got right, title and interest in the suit property by virtue of the Will.
The trial court shall proceed with the matter in accordance with law and shall make all endeavour to decide the suit after giving due opportunity to the contesting defendant nos.1 to 3 to file their written statement, expeditiously, preferably within a period of one year from the date of submission of certified copy of this order.
Subject to above observation and directions the present petition is disposed of.
Order Date :- 25.2.2019 Harshita