Karnataka High Court
Rekha vs Hindu Seva Prathistana, Bangalore And ... on 15 January, 2002
Equivalent citations: 2002(2)KARLJ620
Author: D.V. Shylendra Kumar
Bench: D.V. Shylendra Kumar
ORDER D.V. Shylendra Kumar, J.
1. This civil revision petition at the instance of a third party who had sought to implead herself as a party defendant in Original Suit No. 148 of 1996 on the file of the Court of the Additional City Civil Judge (CCH-13), Bangalore City is against the order dated 5th January, 2000 rejecting I.A. No. IV filed under Order 1, Rule 10 of the Code of Civil Procedure ('CPC' for short) declining the prayer in the I.A. by the Trial Court.
2. O.S. No. 148 of 1996 is filed by the plaintiff who is the first respondent in this revision petition, praying for a restraint order against the defendants 1 and 2 therein, from alienating the suit schedule premises in favour of the third defendant. The suit came to be filed as the plaintiff claims the suit property under a Will dated 15-8-1990 executed by one late Pandit S. Narayana Rao, who has bequeathed this property in favour of the plaintiff with a life-interest reserved in favour of Smt. Lak-shmi Bai, the first defendant, who is the wife of the said Narayana Rao and another lady Smt. Sharadamma who was said to be residing with the said Narayana Rao at that time. The property was to vest absolutely in favour of the plaintiff Trust after their lifetime. The plaint averment is that as the two ladies attempted to alienate the suit property even during their lifetime, it became necessary for the plaintiff to file the suit and to seek an order of injunction to restrain the defendants 1 and 2 from alienating the property etc.
3. The suit had been set down for filing of the written statement of the defendants and at this stage, the civil revision petitioner filed an application under Order 1, Rule 10 of the Civil Procedure Code seeking for her impleadment as a party to the proceeding as an additional defendant to the suit. The petitioner pleaded that late Pandit Narayana Rao has left behind a Will dated 23-8-1991, that is, a day prior to his death on 24-8-1991 bequeathing the suit schedule property absolutely in favour of the petitioner-applicant reserving a life-interest in favour of his wife during her lifetime.
4. The learned Trial Judge rejected the said application being of the view that the petitioner-applicant was not a necessary party to the proceeding particularly in the light of the nature of the suit and the relief sought for by the plaintiff. It is aggrieved by this order, this revision petition is preferred.
5. Sri Bhagawat, learned Counsel for the petitioner has urged that the learned Trial Judge has not understood the true scope of the provisions of Order 1, Rule 10 of the Civil Procedure Code that disallowing of the application made by the petitioner amounts to failure of exercise of jurisdiction vested in the Trial Court; that the order suffers from material irregularity; that the learned Trial Judge failed to appreciate that the petitioner was a person having a definite subsisting interest in the subject-matter, inasmuch as the property has been bequeathed in her favour under the Will set up by her and she was not only a proper party but also a necessary party and as such the impugned order is vitiated and is liable to be set aside.
6. Sri Srisha, learned Counsel appearing for the respondent, on the other hand, has opposed the allowing of the civil revision petition and has contended that the application has been rightly rejected by the Trial Court; that the petitioner cannot seek to enlarge the scope of the suit by bringing in issues not relevant for the purpose of decision in the suit and that the petitioner's interest will not be adversely affected by the rejection of the said application.
7. Sri Bhagawat, learned Counsel for the petitioner has placed reliance on the following decision, namely Ramesh Hirachand Kundanmal v. Municipal Corporation of Greater Bombay and Ors., , in which case the Apex Court had occasion to indicate the scope of an application under Order 1, Rule 10 of the Civil Procedure Code and pointed out that a person who is seeking to implead himself as a party, if has some interest in the subject-matter, the normal rule is to allow such application and disallowing the application amounts to not exercising the jurisdiction vested in the Court.
8. The learned Counsel has also placed reliance on two other decisions of this Court, namely:
K. Padma Bai v. Anasuya R. Kabady, , where the learned Single Judge of this Court had occasion to observe that rejection of the application under Order 1, Rule 10 of the Civil Procedure Code amounts to failure to exercise jurisdiction in the Court as when an applicant had indicated sufficient interest in the subject-matter, the application ought to be allowed. Likewise, in a decision rendered by another learned Single Judge of this Court in National Co-operative Bank Limited, Bangalore v. C.V.S. Trading Company, Bangalore and Ors., 1997(1) Kar. L.J. 514, this Court had occasion to observe that a Bank, in favour of whom certain property had been mortgaged and in respect of which suit had been filed by the owner as against the lessees for recovery of property, the lease having been created subsequent to the mortgage, the Bank should be construed as a necessary party having subsisting interest in the subject-matter and held that the rejection of application filed by the Bank under Order 1, Rule 10 of the Civil Procedure Code was improper and allowed the application, set aside the order passed by the Trial Court and directed that the petitioner-Bank be impleaded as a party respondent to the suit.
9. I have given my anxious consideration to the various contentions urged on both sides. In the instant case, the subject-matter is a property that is claimed to have been bequeathed by late Pandit S. Narayana Rao. There is no dispute on this aspect. The plaintiff claims to be the beneficiary under the Will with life-interest reserved in favour of the wife and another lady mentioned in the Will dated 15-8-1990 said to have been executed by the said late Pandit S. Narayana Rao. Admittedly, the defendants 1 and 2 in the suit are in possession of the property and there is no disturbance of their possession. The relief sought for was only to restrain them from alienating the properties during their lifetime, which, if done, would complicate the matter as they had only a limited interest in the property. In a suit of this nature, the petitioner claimed further interest in the property under a subsequent Will and it is the case of the petitioner that she is a legatee under the Will in respect of the very same property. The relief claimed in the suit does not go beyond restraining the defendants 1 and 2 from alienating the property. A relief of this nature, even assuming that the suit is decreed ultimately, will not in any way affect the interest of the petitioner.
10. The petitioner, if is claiming right, title and interest to the property under a Will set up by her, it is for her to establish her case in any manner known to law. That cannot be achieved by seeking for implead-ment in a suit with limited scope. It is not within the scope of the existing suit as to which of the two Wills has to prevail and in this view of the matter, the Trial Court is definitely justified in rejecting the application.
11. I do not find that the order is either tainted with any material irregularity or that the Court has failed to exercise any jurisdiction vested. The Trial Court on an informed consideration of the application under Order 1, Rule 10 of the Civil Procedure Code and having regard to facts and circumstances of the case, has arrived at the conscious decision that the petitioner was neither a necessary party nor a proper party to the suit. I do not find any scope for interference with an order of this nature in the exercise of revisional jurisdiction under Section 115 of the Civil Procedure Code and the decisions relied upon by the learned Counsel has no application to the facts of the present case.
12. Accordingly, this civil revision petition is dismissed. No order as to costs.