Allowed

Social and Cultural Association at Kusumba and Another v. Chandrakant Mahadu Chaudhari

Bombay HC21 Jul 2014WP/1513/2013

Case brief

AI extract

What is this about?

This writ petition challenged an order rejecting the petitioner's request to be impleaded as a legal heir in a civil suit. The High Court held that denying the request to the legal heir was contrary to the Code of Civil Procedure and set aside the impugned order to allow the impleadment. Parties mentioned are associated with trust and property matters.

What did the court decide?

Impleadment of Anil son of Mahadu Chaudhari as plaintiff No.2 in the suit; modification of the order dated 13th February 2013.

Social and Cultural Association at Kusumba… — Pension and Retirement Benefits | Bombay HC (2014)

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W.P. No.1513/2013

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD

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WRIT PETITION NO.1513 OF 2013

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Social and Cultural Association at Kusumba, Taluka and District Dhule through its President Anil s/o Mahadu Chaudhari and anr.

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..Petitioners

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Versus

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Chabdrakant Mahadu Chaudhari

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..Respondent

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Mr V.D. Hon, Advocate for petitioners Mr J.R. Shah, Advocate for respondent

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CORAM : N.W. SAMBRE, J.

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DATE : 21st July 2014

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PER COURT

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In Regular Civil Suit No.445/2011, the 3^rd Joint Civil Judge, Junior Division, Dhule by order dated 13^th February 2013 has partly allowed the application Exh.30 moved by the present petitioner claiming to be elected President of petitioner No.1 – Trust and legal representative of petitioner No.2, for bringing him on record as his legal representative.

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It appears that the petitioner trust through its President and one Mahadu, in his individual capacity have filed suit for injunction against the defendants. The fact that the plaintiff No.2 was also the President of the plaintiff No.1, is not in dispute.

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W.P. No.1513/2013

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The suit came to be filed questioning mutation entry No.3042 which was effected on 22.9.1999 in relation to the property in question.

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After filing of the suit, the plaintiff No.1 expired leaving behind four legal representatives. One of the legal representatives Anil filed an application for bringing him on record as the President of the plaintiff No.1 – Trust and also claimed right to be impleaded as legal representative of plaintiff No.2, as he has got the property by virtue of a will from his father Mahadu.

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The said application came to be granted by learned trial Court by the order impugned to the extent that said Anil was permitted to be incorporated as President of plaintiff No.1 – Trust, however, his application for representing the interest of his late father Mahadu came to be rejected. As such, the present petition.

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The learned Counsel for the petitioner – plaintiff invited attention of this Court to the fact that the property in question about which the mutation entry is under challenge, was owned by Mahadu and there is no dispute about the same. He has also not disputed that Mahadu has four legal heirs, including petitioner. He points out that there is a will in favour of the petitioner in relation to property in question and as such, he has right to represent the

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W.P. No.1513/2013

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interest of plaintiff No.2 in the suit. Petitioner submits that if he is impleaded as party – plaintiff to the suit, he will be in a better position to assist in the suit so as to save the interest of the plaintiff No.1 – Trust.

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While countering the above submissions, learned Counsel for the respondents – defendants submits that so far as the order impugned is concerned, there is no illegality or material irregularity. He contends that the suit is correctly permitted to be represented through Anil, as he being elected as President of the Trust, however, submission of the petitioner that he be permitted to represent plaintiff No.2, being legal heir of Mahadu, is rightly rejected by the court. He submits, if the application to the extent of claim made by plaintiff is granted, the same will be contrary to the provisions of Order 22, Rule 3 of the Code of Civil Procedure. According to learned Counsel, the trial Court as such has rightly passed the order.

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Learned Counsel for the respondents has also invited attention of this Court to the application Exh.47 moved by the other legal heirs of late Mahadu under the provisions of Order 1, Rule 10(2) of the Code of Civil Procedure. The learned Counsel submits that the trial Court has already ordered notice on the said application which was moved on July 17, 2014.

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W.P. No.1513/2013

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Having considered the rival contentions of the parties, it appears that in a suit, the status of Mahadu as plaintiff No,2 was not objected. In that view of the matter, once the suit at the instance of Mahadu, plaintiff No.2 was entertained, his legal heir have same status of that of Mahadu while conducting the suit. In the present case. Anil, one of the heir of Mahadu sought his impleadment as plaintiff based on a will executed by Mahadu in his favour which, according to the respondents, is also a subject matter of probate proceedings.

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The fact remains that Anil is equally competent to represent the interest of Mahadu, original plaintiff No.2 being his son and the denial of request to that effect by the trial Court, in my opinion, was contrary to the scheme of Order 22 of the Code. It was also required to take note of the fact that vide application Exh.47, the other legal representatives of plaintiff No.2 Mahadu have also sought intervention in the proceedings so that the issue involved in the suit can be appropriately adjudicated.

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In that view of the matter, the order impugned dated 13^th February 2013 passed by 3^rd Joint Civil Judge, Junior Division, Dhule below Exh.30 in Regular Civil Suit No.445 of 2012 to the extent of rejecting the prayer of Anil so as to implead him as plaintiff No.2 Mahadu is required to be granted.

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W.P. No.1513/2013

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As such, it is directed that Anil son of Mahadu Chaudhari be impleaded as plaintiff No.2 to the suit and the order dated 13^th February 2013 stood modified to the above extent.

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Writ Petition is allowed in above terms. There shall be no

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order as to costs.

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( N.W. SAMBRE, J.)

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(vvr/1513.13wp)

Social and Cultural Association at Kusumba and Another v. Chandrakant Mahadu Chaudhari

Case brief

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Social and Cultural Association at Kusumba and Another v. Chandrakant Mahadu Chaudhari

Case brief

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