Iqbal Mubarik Khanyari vs Shahzaada Hussain & Ors

Rajnesh Oswal, J

1) One Sh. Habibullah Khanyari, who was the father of the appellant and the respondent No.1, along with proforma respondents No.2 to 6, had filed a writ petition bearing OWP No.127/2001 titled “Habibullah Khanyari and Ors. vs. State of J&K and Ors.”, whereby prayer was made for quashing of the Government Order No.Home-419(P) of 2000 dated 28.09.2000 and for directing the respondents not to make deduction in the rent and pay rent to the petitioners therein in terms of order dated 20.08.1999.

2) During the pendency of aforesaid writ petition, Shri Habibullah Khanyari died on 11.07.2019 and the appellant filed an application bearing CM No.6066/2022 for bringing himself on record as the legal representative of deceased Shri Habibullah Khanyari. In the said application, vide order dated 22.02.2023, a notice was issued to the official respondents and they were granted time to file response. While the said application was pending, the respondent No.1 filed an application bearing CM No.1161/2023 seeking her impleadment as a necessary and proper party on the ground of demise of Shri Habibullah Khanyari in the year 2019 and the learned Writ Court vide order dated 17.03.2023 allowed the said application on the very first day when the same was listed before the learned writ court.

3) The appellant has impugned the order dated 17.03.2023 through the medium of this intra-court appeal on the ground that the application for impleadment was filed by the respondent No.1 through one attorney holder, namely, Manzoor Ahmad Wani and the said attorney was not valid under law because the power of attorney, pursuant to which the attorney holder had filed an application for impleadment of the respondent No.1, did not pertain to the property which was subject matter of the writ petition. It is also urged by the appellant that the respondent No.1 by concealment of facts had got herself impleaded as party to the writ petition, as by virtue of will deed dated 16.10.2007 duly registered by Sub-Registrar, Srinagar, the appellant had become the exclusive owner of the property in question. The order dated 17.03.2023 has been impugned on yet another ground that without issuing any notice to the appellant, the application was allowed on the date when the same was listed before the learned Writ Court for the first time, as such, the appellant has been condemned unheard.

4) Learned counsel for the appellant vehemently argued that by filing a unique application preferred by the respondent No.1 for arraying herself as proper and necessary party to the exclusion of the appellant, the respondent No.1 got herself impleaded as petitioner in the writ petition. He further submitted that once the respondent No.1 had filed an application for impleading herself as necessary and proper party, the Writ Court ought to have issued notice to the appellant but without affording any opportunity of hearing to the appellant, the application was allowed. He further raised the issue in respect of authority of the attorney holder to file any such application as the Power of Attorney was executed only in respect of the property exclusively owned by the respondent No.1 whereas the property which was subject matter of the writ petition was not owned by her.

5) Per contra, Ms. Ahra Syed, learned counsel for respondent No.1, has raised a preliminary objection regarding the maintainability of the instant appeal by submitting that the order impugned does not fall within the category of “judgment” under clause 12 of the Letters Patent. She further submitted that the respondent No.1 being the daughter of the deceased Habibullah Khanyari, had every right to be impleaded as legal representative of her deceased father.

7) The perusal of the application filed by the respondent No.1 reveals that in para-(3) thereof, it has been mentioned by the respondent No.1 that there are six legal heirs of the deceased Habibullah Khanyari but in the prayer clause of the application, a specific prayer was made to the following extent:

“In the premises, it is, therefore, prayed to your Lordship that the applicant may be impleaded as necessary and proper party as the same shall meet the ends of justice.”

8) Vide order dated 17.03.2023, the learned court allowed the application filed by the respondent No.1 thereby allowing the prayer of the respondent No.1, without issuing the notice to the appellant, who had already filed an application for impleading himself as legal representative of the deceased petitioner. The record further depicts that the respondent No.1 has already filed a suit in respect of the will executed in favour of the appellant before the Court of 4th Additional District Judge, Srinagar, and vide order dated 01.08.2023, the appellant along with others have been temporarily restrained from creating any third-party interest qua the subject matter of the suit under the garb of will, impugned in the suit.

9) The appellant is right in submitting that he has been condemned unheard by the learned Writ Court while deciding the application preferred by the respondent No.1, as the application has been allowed without issuing any notice to him, particularly when he had already filed an application for bringing himself on record as the legal representative of the deceased Sh. Habibullah Khanyari. Both the applications filed by the appellant and the respondent No.1 should have been decided together. Since the application has been allowed by the learned writ court without hearing the appellant and that too when he had already filed an application for impleading himself as legal representative of the deceased petitioner, as such without commenting upon the merits of the claims of either of the contesting parties, this court deems it proper to dispose of this appeal by permitting the appellant to approach the learned writ court for recall of order dated 17.03.2023 passed by the learned writ court.