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Judgment
A.V. Ramakrishna Pillai, J.—The petitioner is the sole defendant in a suit for injunction filed by respondents 1 to 3 who are the siblings of the petitioner. The parties had an elder brother by name Mohan, who died a bachelor. Allegedly, the petitioner and the respondents are the sole legal heirs of Mohan under the Hindu Succession Act. The respondents on the strength of a Will said to have been executed by the deceased Mohan, filed the suit (O.S.No. 129 of 2006) for a decree of injunction against the petitioner. The petitioner was excluded from inheritance as per the said Will.
Thereafter, the petitioner filed another suit in the same court as O.S.No. 279 of 2010 for partition and separate possession of 1/4th share in the properties of the deceased Mohan. That suit is pending.
When the injunction suit came up for trial, the petitioner prayed for a joint trial which was refused. The counsel for the petitioner then made an endorsement on the written statement filed by him in O.S.No. 129 of 2006 in the following words:-
In view of the suit for partition as O.S. 279/2010 is filed and pending before this Hon''ble Court, the defendant has no objection in the suit being decreed as per para 7(a) of the plaint.
However, the counsel, thereafter, felt that the aforesaid endorsement may not be in the best interest of the petitioner. Hence, for explaining the same he filed I.A.No. 1346 of 2010 clarifying that the decree may be passed without prejudice to any of the contentions of the petitioner in the other suit (O.S.No. 279 of 2010), with regard to his co-ownership, his right to get the property partitioned and his contentions against the alleged Will. Thereafter, the petitioner filed I.A.No. 1433 of 2011 with a permission to withdraw/expunge the endorsement made on the written statement. The court below dismissed both the applications by Exts. P5 and P6 orders. The said orders are under challenge in this Original Petition.
Arguments have been heard and the impugned orders were perused.
One of the arguments advanced by the learned counsel for the petitioner is that the endorsement made was only on the understanding that, since the only real issue between the parties is the genuineness of the alleged Will, the same could be agitated in the partition suit filed by the petitioner and that even if a decree of injunction is passed in this case, it can have any effect only till the judgment in the partition suit, once the court finds that the Will is not proved and that the parties are co-owners. According to the petitioner, the learned Sub Judge has expressed that the endorsement would amount to an admission and that all issues would be answered in favour of the respondents.
The submissions made by the learned counsel for the petitioner were stiffly opposed by the learned counsel for the respondents.
Following are the arguments put forward by the learned counsel for the petitioner:-
(i) The endorsement made by the counsel is not an admission of the allegations in the plaint, in terms of Order XII of the CPC and no decree can be passed on such endorsement.
(ii) At best, it is only a procedure contemplated under Order X Rule 1 CPC and the court should have permitted the defendant to make endorsement, should have proceeded under Order XIV Rule 1(5) CPC so as to frame an appropriate issue which remains in the suit to be tried after the endorsement.
I see considerable force in the arguments advanced by the learned counsel for the petitioner. Even if the partition suit is decreed as prayed for, by the petitioner, the decree for injunction in the present suit may have to be set aside in any one process known to law. In that view of the matter, it is only just and proper to allow the petitioner to withdraw the endorsement made by his counsel avoiding unnecessary embarrassment to his counsel and consider the matter on merits. Both the I.As were dismissed by the learned Sub Judge without any reasons.
In the result, I allow this petition. Exts. P5 and P6 orders are set aside. I.A.No. 1433 of 2010 in O.S.No. 129 of 2006 on the file of the Sub Court, Sulthan Bathery, shall stand allowed and the endorsement by the counsel for the petitioner on the written statement filed by him in O.S.No. 129 of 2006 shall stand withdrawn. I.A.No. 1346 of 2010 shall stand closed as unnecessary in the light of the permission to withdraw the endorsement. The court below shall frame issues that remain to be tried in the suit as per the provisions of Order XIV Rule 1(5) CPC. For proper adjudication, both the suits shall be tried jointly. Parties shall mark appearance before the Sub Court on 10.4.2013.