Uttarakhand High Court
WPMS/80/2020 on 6 January, 2021
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
ON THE 6th DAY OF January, 2021
BEFORE :
THE HON'BLE SHRI JUSTICE SHARAD KUMAR SHARMA
WRIT PETITION (M/S) NO. 80 OF 2020
BETWEEN :
1. Smt. Nirmala Devi (female) aged about 51 years
W/o Sri Gurcharan Singh R/o Village Sitapur,
Gaulapar, Tehsil Haldwani, District Nainital.
2. Himanshu (male) aged about 31 years S/o Late
Bhuwan Chandra R/o Village Sitapur, Gaulapar,
Tehsil Haldwani, District Nainital.
3. Suresh Chandra (male) aged about 51 years S/o
Late Bhuwan Chandra R/o Village Sitapur,
Gaulapar, Tehsil Haldwani, District Nainital.
4. Kuldeep Singh (male) aged about 61 years S/o Sri
Har Singh Mahar R/o Jakhni, Tehsil Pithoragarh,
District Pithoragarh.
....Petitioners.
(By Shri Saurabh Pandey, Advocate)
AND :
1. Smt. Champa Devi W/o Late Tika Ram R/o Village
Sitapur, Gaulapar Tehsil Haldwani, District Nainital
2. Smt. Hira Devi W/o Late Bhuwan Chandra R/o
Village Sitapur, Gaulapar Tehsil Haldwani, District
Nainital
....Respondents.
(By Shri Sudhir Kumar, Advocate)
ORDER
In 2011, the plaintiff/respondent No.2 had
instituted a Suit for declaration of the will dated 17th
May, 1995, as to be bad in the eyes of law, as well as
the consequential execution of the sale deed dated 8th
January, 2010, as to be illegal, the relief as sought by
the plaintiff/respondent No.2 in Suit was as under :-
"v& ;g fd fMdzh cgd okfnuh fo:} izfroknhx.k bl vk"k; dh
ikfjr dh tk; fd xzke&lhrkiqj] xkSykikj] rglhy&gY}kuh] ftyk&uSuhrky ds
[ksr uEcjku 18 feu jdcbZ 0-20 gsDVs0] [ksr ua0&19 feu jdcbZ&0-152 gsDVs0]
[ksr ua0&20 feu jdcbZ 117 gsDVs0] [ksr la&215 feu jdcbZ -185 gsDVs0] dqy
jdcbZ 0-483 gsDVs0 ds ckcr fd;k x;k dfFkr clh;rukek tks Jherh gseUrh
nsch ds i{k esa fnuakd & 17&05&1995 dks fd;k x;k gS] dwVjfpr gksus ls
fujLr fd;k tk;A
c&;g fd QthZ olh;rukek fnukad 17&05&1995 ds vk/kkj ij Jherh
gseUrh nsch }kjk izfroknh la0&5 ds i{k esa fd;k x;k mijksDr fodz; i=
fnukad 08&01&2010 dkuwu vekU; vkSj "kwU; gSA
l& [kpkZ eqdnek okfnuh dks izfroknhx.k ls fnyk;k tk;A
n& vU; vuqrks'k tks U;k; fgr esa vko";d gks] okfnuh dks izfroknhx.k
ls fnyk;k tkosA"
2. Principally, when the Suit was instituted, the
present petitioners were defendants to the Suit. After
the exchange of the pleadings, the Suit has travelled
and has reached at the stage of evidence, when the
respondent No.1, herein, has filed an application, paper
No.112-Ga, on 20th November, 2018, invoking the
provisions contained under Order 1 Rule 10 (2) of the
C.P.C., whereby, a prayer was sought for that since he
being the son of the plaintiff/respondent No.2, has got
a right, which would be vested with him as a
consequence of his right of successions being son of
plaintiff /respondent No.2. He contended in the
application for impleadment that, if any adjudication is
made pertaining to the propriety of the will and the
consequential sale deed dated 8th October, 2010, which
was executed later, it would prejudice his rights.
Hence, the said application for impleadment was filed
on 30th November, 2018. It was contended by the
counsel for applicant/ respondent No.1; to be well
within the ambit of Sub-rule (2) of Rule 10 of Order 1
CPC. Even otherwise also, if the provisions contained
under Order 1 Rule 10 of the CPC is taken into
consideration, this Court is of the view that it does not
contemplate, the stage or upto which stage of the
proceedings, to which the application could be filed.
The only necessity for considering the application as
per the intention of Order 1 Rule 10 of CPC, is that, in
case, if any adjudication is made with regard to the
subject matter of the Suit, in case, it may have an
effect on the rights of a person who is seeking, to be
impleaded as a party to the Suit that itself would be
sufficient to add the person as party to the
proceedings; in whose absence the proceedings cannot
be effectively decided on merits or if decided in his
absence would effect his rights.
3. The said application for impleadment, was
opposed by the present petitioners, who are the
defendants to the Suit of respondent No.2, and the
learned Trial Court of Civil Judge (Junior Division), had
rejected the application, paper No.112 Ga, of the
respondent No.1. Aggrieved against the same, the
plaintiff/respondent No.2 had filed a Civil Revision,
being Civil Revision No. 19 of 2019, Smt. Champa Devi
Vs. Smt. Hira Devi. The Revisional Court by the
impugned order dated 19th November, 2019, had
allowed the Revision and while setting aside the order
of the Trial Court; rejecting the application for
impleadment, had allowed the application, paper
No.112 Ga, thereby directing the respondent No.1 to be
impleaded as a party respondents to the Suit, being
Suit No. 68 of 2011, Hira Devi Vs. Nirmal Devi and
others. It is this order, which is being put to challenge
by the petitioners, who are the defendants to the suit.
4. The petitioners had argued that filing of an
impleadment application by respondent No.1, at a
belated stage, apart from the fact that it suffered from
the vices of being a collusive proceeding, it was sought
in order to linger the Suit itself and further since the
application filed itself did not satisfy the ingredients
contained under Order 1 Rule 10 (2), it ought not to
have been allowed by the Revisional Court in the
exercise of its revisional jurisdiction under Section 115
of the C.P.C.
5. The facts, which are admittedly quite clear
from the records as well as by arguments of the
counsel for the parties are that:
i. That the plaintiff/respondent No.2, in whose
Suit the respondent No.1 has been sought to
be impleaded, has herself not assailed the
order allowing the impleadment application
by the Revisional Court, by virtue of the
impugned order.
ii. If any prejudice was to be caused in the
proceedings drawn by the respondent No.2, it
was she, who could have been said to be
aggrieved person to file the Writ Petition,
against the impugned order allowing
impleadment of respondent No.1.
iii. The defendants in the Suit, cannot have any
grievances or a locus too, under the principle
of dominus litus, in case, if the plaintiff
chooses to implead another person as a co-
defendant to the Suit itself; because it will
not prejudice the defendants' right at all, as
his entire defence is still left open to be
raised by him on merits of the case.
iv. As per the records, it is not the case of the
defendants that they had ever instituted any
proceedings for a counter claim in the
pending Suit, which could have entailed them
a right to challenge the order of 19th
November, 2019, allowing the Impleadment
Application of respondent No.1.
6. On a very short premise that since the
respondent No.2 being the dominus litus of the Suit,
being the plaintiff and if she has not contended to have
any prejudice as against the order of 19th November,
2019, allowing the Impleadment Application of
respondent No.1, the other co-defendants under the
law has got no right to challenge the order allowing the
impleadment application, impleading the co-defendants
in the Suit, which was preferred by the respondent
No.2.
7. Hence, this Writ Petition is dismissed on the
ground of locus of the petitioners, itself to challenge
the order of allowing the impleadment application in
the Suit which was filed by respondent No.2.
8. Consequently, the Writ Petition lacks merits
and the same is dismissed.
9. After the conclusion of the judgment, the
learned counsel for the petitioners had made a request
that an appropriate direction may be issued to the
Court of Civil Judge (Junior Division), Haldwani, District
Nainital, before whom the Suit is presently pending to
expedite the proceedings of the Suit, which is pending
consideration since 2011. The said prayer is not
opposed by the learned counsel for the respondents.
Hence it would stand allowed. The Court of Civil Judge
(Junior Division), Haldwani, is requested to decide the
Suit No. 68 of 2011, Hira Devi Vs. Nirmal Devi and
others, as expeditiously as possible but not later that
nine months for the date of production of certified copy
of this order.
(Sharad Kumar Sharma, J.)
Shiv
