HIGH COURT OF JUDICATURE FOR RAJASTHAN
JODHPUR
S.B. Civil Writ No. 11755/2017
Smt.Rami Devi
—-Petitioner
Versus
Narayani Ors.
—-Respondents
For Petitioner(s) : Mr. Abhinav Jain.
For Respondent(s) : Mr. Ajay Goswami.
HON’BLE MR. JUSTICE SANDEEP MEHTA
Order
26/10/2018
The matter today comes up on an application for early
hearing of the writ petition.
With the consent of learned counsel for the parties, the
application is allowed and the writ petition is being heard and
decided today itself.
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.
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.
(2 of 4) [CW-11755/2017]
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.
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
(3 of 4) [CW-11755/2017]
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.
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. He thus craves dismissal of the writ petition.
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.
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
(4 of 4) [CW-11755/2017]
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.
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.
Hence, the writ petition as well as stay application are
dismissed as being devoid of merit.
(SANDEEP MEHTA),J
/tarun goyal/14
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