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2018 DIGILAW 2148 (RAJ)

Rami Devi v. Narayani

2018-10-26

SANDEEP MEHTA

body2018
JUDGMENT : Sandeep Mehta, J. The matter today comes up on an application for early hearing of the writ petition. 2. With the consent of learned counsel for the parties, the application is allowed and the writ petition is being heard and decided today itself. 3. Through this writ petition under Article 227 of the Constitution of India, the petitioner Smt. Rami Devi being the plaintiff before the trial court, has approached this Court for assailing the order dated 8.9.2017 passed by the Additional District Judge No.1, Chittorgarh in Civil Case No.75/2011 whereby, the application filed by the applicant Ratanlal under Order 1 Rule 10(2) read with Section 151 C.P.C. claiming himself to be the adopted son of the defendant late Shri Nanda, was accepted. 4. The petitioner filed the suit for specific performance of contract in the trial court claiming that the defendants Nanda, Narayani and Anachhi entered into an agreement dated 16.5.2002 to sell 0.55 hectare of their agricultural land to the plaintiff. Nanda passed away during pendency of the said suit on which, the plaintiff moved an application under Order 22 Rule 4 C.P.C. claiming that Nanda had three sisters as his legal representatives of which, Jhamku had passed away. The other two sisters Narayani and Anachhi were already defendants in the suit and thus, a prayer was made in the application to delete the name of Nanda from the array of defendants. While the suit was proceeding, Shri Ratanlal respondent moved an application under Order 1 Rule 10(2) C.P.C. read with Section 151 C.P.C. with a prayer for being impleaded as a defendant in capacity of the legal heir of Shri Nanda claiming that Nanda had adopted the applicant in his lifetime. The said application came to be accepted by the trial court by order dated 8.9.2017 which is assailed by the petitioner in this writ petition under Article 227 of the Constitution of India. 5. Shri Abhinav Jain, learned counsel representing the petitioner vehemently and fervently urges that the impugned order is grossly illegal, arbitrary and perverse. The claim of the applicant that he was the adopted son of the deceased defendant Nanda, was absolutely false and cooked up. 5. Shri Abhinav Jain, learned counsel representing the petitioner vehemently and fervently urges that the impugned order is grossly illegal, arbitrary and perverse. The claim of the applicant that he was the adopted son of the deceased defendant Nanda, was absolutely false and cooked up. The pleadings of the application in reference to the age of the applicant makes it clear that the applicant was more than 15 years of age at the time of his alleged adoption and thus, he could not have been lawfully adopted. No evidence was placed on record of the trial court to establish that the mandatory ceremonies and functions warranted by Section 14 of the Hindu Adoption and Maintenance Act were followed when the applicant was adopted by Nanda and thus, the applicant could not have been impleaded as a party defendant in the suit in the capacity of legal heir of Nanda. He further urges that by allowing impleadment of Ratanlal, the nature of the suit would be changed and the petitioner being the dominus litis, has a right to oppose such prayer. He also relied upon a certificate issued by the Sarpanch of the Gram Panchayat wherein, it is mentioned that Nanda died issueless. He further submits that while passing the order, the trial court failed to consider the important aspect, as to whether Ratanlal is a necessary or proper party in the suit and without adjudicating this question, the impleadment application has been mechanically allowed by the impugned order which, as per Shri Jain, suffers from gross illegality, arbitrariness and perversity. On these grounds, he implored the Court to exercise its supervisory writ jurisdiction and quash the impugned order. 6. Per contra, Shri Ajay Goswami, learned counsel representing the respondent vehemently and fervently opposed the submissions advanced by Shri Jain. He urges that the applicant clearly pleaded in his application that he was adopted by Shri Nanda after following the prevalent customs and ceremonies. He further submits that even while accepting the application, the trial court has put the burden of establishing the fact of a proper adoption upon the applicant and as such, still the issue has not been closed. The applicant would have to lead proper evidence to satisfy the trial court regarding his adoption and in case, he fails to do so, then manifestly, he would not be allowed to defend the suit. The applicant would have to lead proper evidence to satisfy the trial court regarding his adoption and in case, he fails to do so, then manifestly, he would not be allowed to defend the suit. He thus craves dismissal of the writ petition. 7. I have given my thoughtful consideration to the arguments advanced at the Bar and have gone through the impugned order and the other material placed on record. 8. The applicant respondent claims to be the adopted son of Shri Nanda and thus, he definitely has a right to oppose the suit which was filed in as late as in the year 2011 seeking specific performance of agreement allegedly executed way-back in the year 2002. The applicant specifically pleaded in his application that he was customarily adopted by late Nanda. Precise date of adoption has been set out in the application. Thus, without any doubt, in case the applicant is successful in satisfying the court by proper proof that he had been adopted by the defendant late Shri Nanda as per the prevalent customs, then he definitely has a right to defend the suit being a necessary party. The plea of Shri Jain that no proper evidence was led by the applicant to establish that he was lawfully adopted son of late Shri Nanda, is not relevant or tenable at this stage considering the fact that the trial court has itself conditionally accepted the application of the respondent Ratanlal holding that he would be under an obligation to establish and prove that his adoption by the defendant late Shri Nanda was properly carried out. In this background, the apprehension of the petitioner that if the respondent is impleaded as a party defendant in the suit, his rights would be adversely affected, is totally unfounded. 9. The impugned order dated 8.9.2017 ex-facie does not suffer from any illegality, infirmity or error apparent on the face of the record warranting interference therein in exercise of this Court's supervisory writ jurisdiction. 10. Hence, the writ petition as well as stay application are dismissed as being devoid of merit.