Bombay High Court
Niyaz Ahmad S/O Hifzul Kabir And ... vs Kisanlal S/O Sadiram Agrawal ... on 29 September, 2022
Bench: Manish Pitale
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
WRIT PETITION NO. 4824 OF 2022
Niyaz Ahmad & another -- Petitioner
Vs.
Kisanlal s/o Sadiram Agrawal & others -- Respondent
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Office Notes, Office Memoranda of Coram, Court's or Judge's orders
appearances, Court's orders of directions
and Registrar's orders
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Mr. Masood Shareef, Advocate for Petitioners
Mrs. Radhika D. Raskar, Advocate for Respondent No.1
CORAM : MANISH PITALE, J.
DATE : 29th SEPTEMBER, 2022
Heard learned counsel for the parties.
2. By this petition, the petitioners i.e. the original defendant
Nos.1 and 2 are before this Court, challenging an order dated
03/03/2022, passed by the Court of Joint Civil Judge, Senior
Division, Nagpur, whereby an application at Exh.41, seeking to
bring on record legal representative of the original plaintiff has
been allowed.
3. The original plaintiff had filed a suit for declaration and
cancellation of partition deed, sale deed and power of attorney
and for permanent injunction against the petitioners and original
defendant No.3. This Court is not referring to the contentions
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raised on behalf of the original plaintiff in the pending suit as
they are not relevant for the limited issue that arises in the
present writ petition.
4. It is an admitted position that during the pendency of the
suit on 17/07/2021, the original plaintiff died. In this situation,
the aforesaid application at Exh.41 was filed by the applicant
herein, claiming to be the legal representative of the deceased
original plaintiff, on the strength of a registered adoption deed
dated 28/12/1985. The petitioners being the original defendant
Nos.1 and 2 filed reply to the said application opposing prayers
made in the application at Exh.41, inter-alia, contending that the
applicant could not have been adopted by the original plaintiff
for the reason that the applicant was major at the time of
execution of the adoption deed. It was also contended in the
reply that the applicant had failed to give details regarding other
legal heirs of the original plaintiff.
5. As noted above, on 03/03/2022, the Court below passed
the impugned order allowing the application, as a result of which
the applicant in the application at Exh.41 was brought on record
as the legal heir of the original plaintiff.
6. Aggrieved by the said order, the petitioner filed the present
writ petition, wherein on 17/08/2022, this Court issued notice
and granted interim stay of further proceedings in the suit.
7. On notice being served, the contesting respondent No.1
appeared through counsel.
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8. Mr. Shareef, learned counsel appearing for the petitioner
submitted that the impugned order is cryptic and without any
reasons. The order is simply based on the registered adoption
deed and there is no reference to the specific objections raised on
behalf of the petitioners. It is submitted that, according to the
petitioners, a bare reading of the registered adoption deed would
show that it is not in accordance with the provisions on the
Hindu Adoption and Maintenance Act, 1956. It was submitted
that in such a situation, an inquiry as contemplated under Order
22 Rule 5 of the Code of Civil Procedure (CPC) was warranted,
which the Court below failed to conduct and by way of a cryptic
order, erroneously allowed the application.
9. On the other hand, Ms. Radhika Raskar, learned counsel
appearing on behalf of the contesting respondent No.1
submitted that since the adoption deed is admittedly a registered
document a presumption under Section 16 of the Act of 1956
arises and for the limited purpose of permitting prosecution the
suit the applicant in application at Exh.41 was correctly
permitted to be brought on record as the legal heir. It was
submitted that by operation of the presumption in favour of the
applicant, no further inquiry was necessary and the impugned
order could not be said to be erroneous.
10. The learned counsel appearing for the rival parties relied
upon judgments of the Hon'ble Supreme Court in support of
their respective contentions. But, this Court is of the opinion that
the present writ petition can be decided on the short ground that
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the impugned order does not show any discussion of the rival
contentions and in a cryptic manner, the Court below proceeded
to allow the application at Exh.41.
11. This Court is of the opinion that the rival contentions
raised on behalf of the contesting parties at least merited
discussion on the objections raised by the petitioners, including
the question, as to whether the nature of objections raised on
behalf of the petitioners warranted an enquiry as contemplated
under Order 22 Rule 5 of CPC. A perusal of the impugned
order shows that the Court below made no effort to even refer to
and discuss the aforesaid aspects that arose in the matter,
including the implication of the presumption that arises under
Section 16 of the Act of 1956 and whether the petitioners can be
granted an opportunity to rebut the presumption. On this short
ground the impugned order deserved to be set aside.
12. In view of the above, the writ petition is partly allowed.
The impugned order is quashed and set aside. The Court below
shall now take up the application at Exh.41 for consideration
afresh, to examine as to whether the rival contentions raised by
the contesting parties merit an inquiry as contemplated under
Order 22 Rule 5 of the CPC and if so, in what manner the
specific objections raised on behalf of the petitioners are to be
dealt with, in the light of the position of law clarified in this
regard by the Hon'ble Supreme Court. It is specifically directed
that the effect of the registered adoption deed, the presumption
under Section 16 of the Act of 1956 and the objection raised on
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behalf of the petitioners that the presumption would not operate
as the adoption was not made in compliance with the provisions
of the Act of 1956, will have to be taken into account while
considering the application at Exh.41.
13. It is made clear that this Court has not expressed any
opinion either way on the contentions raised by the rival parties
and it would be in the interest of justice that the application at
Exh.41 is decided at the earliest by the Court below.
14. The writ petition is disposed of in above terms.
15. The Court below is directed to decide the application at
Exh.41 expeditiously and in any case within six weeks from
today.
JUDGE
Digitally signed by:MILIND
P DESHPANDE
Signing Date:30.09.2022
16:36
MP Deshpande
