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Smt. Rami Devi vs Narayani And Ors on 26 October, 2018

S.B. Civil Writ No. 11755/2017
Smt.Rami Devi

Narayani Ors.


For Petitioner(s) : Mr. Abhinav Jain.
For Respondent(s) : Mr. Ajay Goswami.


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


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.


/tarun goyal/14

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