Shrinivasa Nayak vs Chandrika Rao H. and Gangadhar Naik

A.N. Venugopala Gowda, J.—Petitioner and the 1st respondent are respectively the husband and wife. The petitioner has filed on 06.03.2009, M.C. No. 25/2009, under S.13(i) and (i-a) read with Ss. 20 & 21 of the Hindu Marriage Act, 1955 against the respondents, to pass a decree of divorce on the grounds of cruelty and adultery on the part of the 1st respondent. The petition has been contested by filing counter''s. Respondent No. 1 - wife, filed I.A. 20, on 25.06.2011, under Order I Rule 10 CPC, to implead two persons named therein as co-respondents 3 & 4, on the ground that the petitioner is leading adulterous life with the said persons, by making false allegations of adultery on her. It was stated that in order to prove that the petitioner is leading adulterous life and to succeed in her defence, the proposed two additional respondents are necessary and proper parties. Though, I.A. 20 was opposed by filing a counter, the Trial Court by making reference to the decisions in the cases of M/s. Aliji Monoji and Co. Vs. Lalji Mavji and others, & Arun Kumar Agarwal Vs. Radha Arun and Another, and the serious allegation made against the petitioner of he living adulterous life with the proposed respondents, has allowed I.A. 20, by observing that for complete and effectual adjudication of the dispute, they are proper parties. The proposed respondents 3 & 4, even though are not necessary parties, they being proper parties, I.A. 20 was allowed and the 1st respondent was permitted to implead proposed persons as respondents 3 & 4. Challenging the said order, this writ petition has been filed.

Sri Ashok Haranahalli, learned Senior Counsel, contended that the Court below, by improperly considering the two decisions noticed in the impugned order, which have no bearing at all to the matter in consideration, despite arriving at the conclusion that the proposed respondents are not necessary parties, has casually allowed the application, without correctly considering the tenable objections filed with regard to non maintainability of I.A. 20. He submitted that the 1st respondent having not filed a counter claim and not sought a decree against the petitioner, the proposed respondents being not necessary parties, allowing of I.A. 20 being illegal, interference is warranted.

Sri Amit Mandgi, learned advocate for respondent No. 1 was unable to support the impugned order on account of respondent No. 1 having not made any counter claim against the petitioner. However, learned counsel submitted that respondent No. 1 may be reserved with the liberty to seek impleading of the proposed additional respondents, as and when a counter claim is made against the petitioner. Respondent No. 1 has not made any counter claim and has not sought dissolution of marriage by decree of divorce on the ground that the petitioner has voluntarily had sexual intercourse with third party after solemnization of the marriage. In the circumstances, I.A. 20 being not maintainable, the Trial Court has acted with material irregularity in allowing I.A. 20, by merely making reference to decisions, which have no application, in view of the facts and circumstances of the instant case. Mechanically reliance has been placed on the two decisions, noticed supra and I.A. 20 has been allowed, despite finding that the proposed additional respondents are not necessary parties. It is trite that, persons whose presence is absolutely necessary for grant of relief claimed in a proceeding are necessary parties and such parties can be permitted to be impleaded and not otherwise. There is casual approach to the matter by the Trial Court and the same cannot be countenanced, since there could be character assassination. In the circumstances, the impugned order cannot be sustained.

In the result, writ petition is allowed and the impugned order is quashed. Trial Court is directed to decide the matter expeditiously and within a period of six months from the next hearing date, since M.C. No. 25/2009 was filed on 06.03.2009.

No costs.