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2002 DIGILAW 152 (MAD)

Akshya Vidyalaya Charitable Trust v. E. Kaladevi

2002-02-26

FAKKIR MOHAMED IBRAHIM KALIFULLA

body2002
Judgment : 1. This Revision has been preferred against the order of the Court below dated 17.10.2001 in I.A.No.20 of 2001 in O.S.No.240 of 1994 allowing the application filed under Order 1, Rule 10(2), C.P.C. for impleading the respondents 1 and 2 herein as plaintiffs 4 and 5 in the suit. 2. The first respondent claimed herself to be the Power Agent of the original plaintiffs 1 to 3. It is stated that the plaintiffs 1 and 2 died on 10.7.2000 and 23.10.2000 respectively. While so, the present application was filed by respondents 1 and 2 before the Court below contending that by virtue of an alleged will dated 15.2.1995 executed in their favour by the deceased plaintiffs 1 and 2, the respondents have got substantial right in the suit schedule property and therefore it has become necessary to implead them as plaintiffs 4 and 5 in the suit. The suit has been filed for declaration and possession and also for damages. In such circumstances, even though the petitioner resisted the said application filed by the respondents, the Court below was of the prima facie view, that the impleadment of the respondents as plaintiffs 4 and 5 was necessary for proper adjudication of the suit and on that basis, the application came to be ordered. 3. Mr.P.Jyothimani, learned counsel appearing for the petitioner would vehemently contend that when the unprobated will was the basis for the present application moved by the respondents, unless and until the existence of the will was established to the satisfaction of the Court, the Court below was not justified in ordering the application of the respondents and for impleading them as plaintiffs 4 and 5. The learned counsel also contended that merely based on a xerox copy of the so called will, the Court below ought not to have ordered the application filed by the respondents. 4. On a perusal of the order of the Court below, I find that the lower Court was very much aware of the above said contentions raised while ordering the application for the impleadment. 4. On a perusal of the order of the Court below, I find that the lower Court was very much aware of the above said contentions raised while ordering the application for the impleadment. In fact, the court below has only held that the above contentions could be validly determined at the time of trial and in the present juncture, under Order 1, Rule 10(2), what was required was only a prima facie satisfaction and when based on the claim now made by the respondents, the Court below was convinced that their impleadment as plaintiffs 4 and 5 was imperative for the proper adjudication of the suit, the application was bound to be allowed. I am in full agreement with the said perception of the Court below while ordering the application preferred by the respondents. As rightly held by the Court below, merely because the application has been allowed and the respondents 1 and 2 got impleaded as plaintiffs 4 and 5, the same would not ipso facto mean that the existence of the so called will dated 15.2.1995 was proved in all respects and that nothing more was required to be done with regard to the execution of the said will in the disposal of the suit. Therefore when the Court below has also held that after the impleading of the respondents as plaintiffs 4 and 5, the petitioners would also be entitled to file their additional written statement and make their say, there is absolutely no justification in the stand of the petitioners in stating that the ordering of the present application and thereby impleading the respondents 1 and 2 as plaintiffs 4 and 5 would defeat their claim in the main suit. Therefore, I do not find any grave illegality or irregularity in the order of the Court below in having allowed the application of the respondents 1 and 2 for impleading them as plaintiffs 4 and 5. It is however reiterated that ordering of the said application would not ipso facto mean that the existence of the will dated 15.2.1995 relied upon by the respondents got established. The burden is still upon the respondents to establish the said factor to the satisfaction of the Court which burden is to be discharged by the respondents at the time of trial of the suit. In the result, the Civil Revision Petition fails and the same is dismissed. The burden is still upon the respondents to establish the said factor to the satisfaction of the Court which burden is to be discharged by the respondents at the time of trial of the suit. In the result, the Civil Revision Petition fails and the same is dismissed. No costs. Consequently, C.M.P. is closed.