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Andhra High Court · body

2001 DIGILAW 1594 (AP)

Gandamani Gowramma v. Gandamani Gowramma

2001-12-07

V.V.S.RAO

body2001
V. V. S. RAO, J. ( 1 ) JUDGMENT the petitioners aggrieved by an order dated 19. 7. 2001, passed by the Senior Civil Judge, Bobbili, in IA No. 197 of 2001 in OS No. 36 of 1995, have filed this CRP. ( 2 ) THE petitioners filed the said IA under Order 1, Rule 10 of the Code of Civil Procedure, 1908 (for brevity the Code ) praying the Court to implead them as defendants 6 to 8 in OS No. 36 of 1995. The same having been dismissed by reason of the impugned order, they approached this Court contending that the trial Court failed to exercise the jurisdiction vested in it, and that failure to exercise such jurisdiction has occasioned in miscarriage of justice. ( 3 ) WHEN the matter was listed 7. 9. 2001, this Court issued notice before admission. On 7. 11. 2001, when the matter was listed, I heard the learned Counsel for the petitioners as well as the respondents. ( 4 ) THE 1st petitioner is the wife Gandamani Appalanarasaiah, who is the 2nd defendant in the suit. The 2nd and 3rd third petitioners are their children. The 1st respondent, who is also the wife of Gandamani Appalanarasaiah, and her two children, 2nd and 3rd respondents filed a suit for partition being OS No. 36 of 1995. Alleging that they came to know about the pendency of the suit recently, the petitioners filed interlocutory application to get themselves impleaded in the suit as party defendants. The application was opposed inter alia on the ground that by reason of collusion between respondents-defendants 4 to 8 on the one hand and petitioners 1 to 3 on the other hand, the application is filed, that the petitioners are third parties and are not Class I heirs of Gandamani Appalanarasaiah, and that the application suffers from suppression of material facts. ( 5 ) THE learned trial Court rejected the application on the grounds that the petitioners did not prove as to how they are necessary parties to the suit, and since the suit is one filed for partition of the ancestral properties of the family of the 5th respondent, the petitioners are not necessary parties for deciding the issue. ( 5 ) THE learned trial Court rejected the application on the grounds that the petitioners did not prove as to how they are necessary parties to the suit, and since the suit is one filed for partition of the ancestral properties of the family of the 5th respondent, the petitioners are not necessary parties for deciding the issue. ( 6 ) THE learned Counsel for the petitioners Smt. Jayanti submits that the relationship of the 1st petitioner with 5th respondent has not been denied, and therefore, the 2nd and 3rd petitioners being the children of 5th respondent through the 1st petitioner, are Class I heirs, and are necessary parties for effectively adjudicating all the issues involved in the partition suit. She also submits that the reasoning given by the trial Court while dismissing the application is not germane for deciding the application with the parameters of Order I, Rule 10 (1) of the Code. The learned Counsel for respondents 1 to 3 submits that the application itself is delayed, and the 2nd and 3rd petitioners being illegitimate children are not entitled to any share in the property of the 5th respondent. ( 7 ) THE short question that falls for consideration is as to whether the impugned order passed by the trial Court suffers from any error by reason of alleged improper exercise of jurisdiction vested in the trial Court, which would occasion failure of justice or cause irreparable injury to the petitioners. ( 8 ) RESPONDENTS 1 to 3 in their counter to the interlocutory application did not deny the relationship of the 1st petitioner with 5th respondent. Therefore, it is not unsafe to proceed on the premise that 1 st petitioner is the wife of 5th respondent and petitioners 2 and 3 are children born out of the wedlock between 1 st petitioner and 5th respondent. Without anything else, this relationship would itself clothe the petitioners with the character of being absolutely necessary parties to enable to Court to effectively decide and adjudicate the disputes involved in the partition suit. Whether there was alleged collusion between the defendants in the suit and the petitioners is immaterial for deciding an application filed under Order 1, Rule 10 (2) of the Code. Whether there was alleged collusion between the defendants in the suit and the petitioners is immaterial for deciding an application filed under Order 1, Rule 10 (2) of the Code. ( 9 ) NEXTLY, the learned trial Court proceeded on the ground that when evidence on the side of the plaintiffs-respondents 1 to 3 was closed long ago, the filing of the interlocutory application by the petitioners at this stage was certainly at the behest of the defendants. This is a surmise without any basis, and cannot be a ground to refuse to exercise the jurisdiction vested in the Court. It is important to remember that the Court may order to add or strike out the parties at any stage of the proceedings on either upon or without application of either party . The doctrine of natural justice is writ large in the provision, and the Court should endeavour to give full play and scope to the doctrine of natural justice rather than curtailing it. Furthermore, the submission of the learned Counsel for respondents 1 to 3 based on the hypothesis that legitimate children have no right to the property of the father is misplaced. It is swell settled by reason of Section 16 of the Hindu Marriage Act, 1955, as interpreted by various Courts, even the children bom out of wedlock not recognised in law, are entitled to the rights under the Hindu Succession Act, 1956. I would hasten to add that it is ultimately for the trial Court to decide these issues, and these prima facie observations would not in any way preempt the trial Court from deciding all the issues of facts and law after full trial. ( 10 ) IN the result, for the above reasons the impugned order of the Court of Senior Civil Judge, Bobbili, is not sustainable, as the same results in irreparable injury to the petitioners. This Court must intervene and set aside the order. Accordingly, the order dated 19. 7. 2001, passed by the Senior Civil Judge, Bobbili, in LA. No. 197 of 2001, filed by the petitioners under Order 1, Rule 10 of the Code is allowed. The trial Court shall now implead the petitioners as defendants 6 to 8 in the suit OS No. 36 of 1995 and proceed with the trial as expeditiously as possible. No order to costs.