Smt. Rameshwari Devi vs Anirudh Kumar and others

Heard learned counsel for the parties and perused the record. By way of instant petition, the petitioner has challenged the order dated 26.03.2012 passed by Addl. District Judge/2nd FTC, Haridwar in Civil Appeal no. 5 of 2011 ''Keshav Dutt and ors. vs. Anirudh Kumar and ors.'' whereby application of petitioner paper no. 76c/2 seeking her impleadment in the appeal, has been rejected.

It is not disputed that one Shri Keshav Dutt, who was impleaded as defendant no. 3 in Original Suit No. 76 of 1991, died on 14.07.1998. After his death, his sons and daughter were substituted in the suit in place of their father late Keshav Dutt. The petitioner who is widow of late Keshav Dutt, did not move any application during the pendency of the suit, claiming one of the legal heirs of late Keshav Dutt. Said suit was decreed by Civil Judge (Sr. Div.), Haridwar vide order dated 16th December, 2000 declaring the plaintiffs owner of 1/3rd share in the property in question. Aggrieved by the order dated 16th December, 2000, an appeal, bearing no. 5 of 2001, was preferred. During the pendency of the appeal the petitioner, who is widow of late Keshav Dutt, moved an application for her impleadment. Said application has been rejected by the Addl. District Judge/2nd F.T.C., Haridwar against which present writ petition has been filed.

Submission of the learned counsel for the petitioner is that the petitioner is the widow of late Keshav Dutt/ defendant no.3 and is one of the legal heirs of the deceased and in case, the appeal is decided in favour of the sons and daughter of the petitioner, though the petitioner is not party in the appeal, her rights will adversely be affected. On the other hand, learned Senior Advocate appearing for the respondents submitted that the suit was a partition suit, and sons and daughter of the petitioner as well as the petitioner have nothing to do with the property in question and in such view of the matter, the petitioner is not a necessary party, therefore the Lower Appellate Court has rightly rejected the application of the petitioner, inasmuch as, the legal heirs of late Keshav Dutt are already there and they have preferred appeal against the order passed by the trial Court. He further submitted that the petitioner has moved the application 76c/2 after a considerable period of ten years.

I have considered the submissions advanced by learned counsel for the parties. It is not disputed that the petitioner is the widow of late Keshav Dutt and when other legal heirs of late Keshav Dutt have already been impleaded, I do not find any justification in not permitting the petitioner to be impleaded as one of the parties, as she is widow of late Keshav Dutt, who was defendant no.3 in the suit.

In view of the preceding reasons, the writ petition is allowed. Order dated 26.03.2012 passed by Addl. District Judge/2nd FTC, Haridwar in Civil Appeal no. 5 of 2001, so far it relates to the rejection of application 76-c/2 is hereby set-aside. The application 76c/2, moved by the petitioner is hereby allowed subject to payment of cost of ! 2,000/- to be paid to the plaintiffs (respondent no.1 & 2 herein) before the Lower Appellate Court. Let necessary impleadment be incorporated within 15 days from today. Simultaneously, it is made clear that the Lower Appellate Court shall consider the appeal on its own merits, and mere allowing the application paper no. 76c/2, by this Court, will not mean that the petitioner has any vested rights over the property in dispute. This issue, if required to be decided, will solely be decided by the Lower Appellate Court independently, in accordance with law.

Learned counsel for the respondents submits that the sole purpose of the petitioner is to delay the proceedings of the appeal, pending before the Lower Appellate Court. He submitted that this Court in Writ Petition No. 943/ 2011 (M/S) has issued directions to the Lower Appellate Court to decide the appeal expeditiously. Considering the fact that the matter is very old and also considering the fact that there exists direction of this Court in Writ Petition No. 943/ 2011 (M/S) for expeditious disposal of the appeal, I direct the learned Addl. District Judge/2nd F.T.C., Haridwar to decide the appeal within a period of three months from the date of production of a certified copy of this order. It is expected that while hearing the appeal, the Lower Appellate Court shall not grant any unnecessary adjournments to any of the parties Stay application (CLMA No.3009/12) also stands disposed of.