Dismissed

Sarup Singh and Anr. v. Sinder Kaur and Ors.

Punjab & Haryana HC26 Apr 2011CR/2704/2011

Case brief

AI extract

What is this about?

In a civil revision petition under Article 227, the Punjab and Haryana High Court dismissed the application seeking to implead petitioners as necessary parties in an inheritance suit. The trial court held impleadment unnecessary given evidence was concluded. The High Court upheld this, finding no grave injustice or gross failure of justice warranting interference.

What did the court decide?

Application for impleadment and revision petition dismissed as devoid of merit; impugned order set aside.

Sarup Singh and Anr. Vs Sinder Kaur and Ors. — Property and Title | Punjab & Haryana HC (2011)

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Civil Revision No.2704 of 2011(O&M)

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.

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Civil Revision No.2704 of 2011(O&M) Date of Decision: April 26, 2011

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Sarup Singh and another

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.....Petitioners

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Sinder Kaur and others

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.....Respondents

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CORAM: HON'BLE MR.JUSTICE RAM CHAND GUPTA

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Present: Mr.Jasbir Rattan, Advocate for the petitioners.

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.......

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RAM CHAND GUPTA, J.(Oral)

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C.M.No.10872-CII of 2011

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Application is allowed subject to all just exceptions.

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Civil Revision No.2704 of 2011

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The present revision petition has been filed under Article 227 of the Constitution of India for setting aside order dated 24.2.2011, Annexure P1, and for allowing the application of the petitioners to implead them as party in Civil Suit No.817 dated 4.12.2008 pending for 31.3.2011 filed by respondent no.1-Sinder Kaur against respondents no.2 and 3 -defendants.

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I have heard learned counsel for the petitioners and have gone through the whole record carefully including the impugned order passed by learned trial Court.

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Facts relevant for the decision of present revision petition are that Sinder Kaur-respondent no.1-plaintiff has succeeded property of her father Mehar Singh. She also succeeded the property of her uncle Sher Singh, brother of Mehar Singh, as he died unmarried and issueless. Mutation of inheritance of Sher Singh was sanctioned in favour of respondent-plaintiff-Sinder Kaur. Present respondents-defendants Swarn Singh and Sukhwinder Singh are not, in any way related to Sher Singh. However, they are claiming rights in the property left by Sher Singh on the

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Civil Revision No.2704 of 2011(O&M)

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basis of a Will, allegedly executed in their favour by Sher Singh. Respondent no.1-plaintiff had challenged the said Will being set up by respondents-defendants, Swarn Singh and Sukhwinder Singh in the suit and sought declaration of her title of property in dispute against them with a consequential relief of permanent injunction.

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Present petitioners-applicants have filed a separate suit, Annexure P3, against respondent-plaintiff-Sinder Kaur for seeking declaration that, in fact, they are entitled to succeed to the property left by Mehar Singh and Sher Singh, deceased, sons of Mukand Singh, and Sinder Kaur is not the daughter of Mehar Singh as he also died issueless and, hence, she is having no right in the property of Mehar Singh and Sher Singh and, in fact they are entitled to inherit the property left by Mehar Singh and Sher Singh, as they are sons of brother of deceased Mukand Singh, namely, Santu Singh. However, in the suit filed by present petitioners, present respondents no.2 and 3-defendants were not made party and the Will set up by them is also not in dispute in that suit.

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Application of petitioners for impleading them as party in the suit filed by respondent no.1-plaintiff-Sinder Kaur against respondentsdefendants has been contested by respondent no.1-plaintiff Sinder Kaur on the plea that they are not necessary party in the suit as in this suit, only Will, allegedly set up by Swarn Singh and Sukhwinder Singh has been challenged by her. The application was dismissed by learned trial Court vide impugned order by observing as under:-

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“5.Here in the present case, it is the specific case of the applicants that the applicants are the sons of Santu Singh, real brother of Mukand Singh and are thus entitled to the estate of said Mehar Singh etc. as natural heirs. The applicants have already filed a civil suit dated 21.3.2009 titled as Sarup Singh and others versus Sinder kaur regarding the subject matter. In the civil suit filed by the applicants, the defendant, who is the present plaintiff has filed the written statement in which she alleged the pendency of the present suit. She has also alleged in the written statement that Swaran Singh etc. forged the unregistered Will in their favour and a case of mutation between Sinder Kaur and said Swaran Singh etc. is pending in the

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Civil Revision No.2704 of 2011(O&M)

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Court of Assistant Collector Ist Grade, Dhuri and Civil suit filed by Sinder Kaur against said Swaran Singh is also pending in this Court, but despite that written statement filed by respondent/Sinder Kaur on 12.8.2009, the applicants kept mum for a period of more than one year and did not move any application to implead themselves as party. Otherwise also, in the civil suit filed by the applicants, they have never challenged the unregistered will against whom the present plaintiff has filed the suit. The plaintiff is dominus litus and no person can be impleaded as a party whom he opposes. It is only in exceptional cases where the Court finds that addition of a party is absolutely necessary to enable to adjudicate effectively and completely in the matter between the parties a person is permitted to be added as a party despite opposition of the plaintiff. Here in the present application, there is nothing on the record to show that the applicants are necessary party and in the absence of whom, controversy cannot be effectively and completely adjudicated. Merely, the applicants have filed the civil suit against the plaintiff in which they have sought the declaration regarding estate of Mehar Singh, Sher Singh and Ajmer Singh deceased sons of Mukand Singh on the ground of natural succession against the plaintiff. But the plaintiff in that case has not challenged the registered will, which the plaintiff has challenged in the present case. The plaintiff in the present case has already led her evidence. The defendants in the present case also have led their entire evidence and the case was fixed for rebuttal evidence, when the present application has been moved. Therefore, it is clear that the applicants are neither the necessary parties nor in their absence, the suit cannot be effectively and completely adjudicated upon. Otherwise also the present application has been moved only to delay the present case. Accordingly, application in hand being devoid of any merit is ordered to be dismissed.”

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It has been contended by learned counsel for the petitioners

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Civil Revision No.2704 of 2011(O&M)

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that as relief of declaration regarding inheritance of estate of Sher Singh is in dispute in the suit filed by respondent no.1-Sinder Kaur against Swarn Singh and Sukhwinder Singh, the present petitioners are having right on the basis of natural succession in the said property and hence,they are necessary party to the suit. On the point, he has also placed reliance upon Mumbai International Airport Pvt. Ltd. v. Regency Convention Centre & Hotels Pvt.Ltd. and others , 2010(4) Civil Court Cases 295 (SC).

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So far as legal proposition held in the aforementioned judgment is concerned, there is no dispute.

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Law is well settled that the Court, at any stage of proceedings, can strike out or add a party either suo motu or on the application of plaintiff or defendant or on an application of a person, who is not a party to the suit, provided he is necessary party for deciding the controversy in dispute. Law is also well settled that plaintiff being dominus litus may choose the person against whom he wishes to litigate and cannot be compelled to sue a person against whom he does not seek any relief and, however, there is an exception to this general rule that a proper or necessary party has to be impleaded. There cannot be any straight jacket formula and each case is to be decided on its own peculiar facts as to whether a party is a necessary party for deciding the controversy in dispute.

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As already discussed above, in the suit filed by respondent no.1-plaintiff -Sinder Kaur against respondents no.2 and 3, the dispute is as to whether Sher Singh deceased executed any valid Will in their favour. Sinder Kaur has sought declaration of her title against them on the ground that the said Will is not validly executed by Sher Singh. So far as rights of present petitioners in the estate left by Mehar Singh and Sher Singh is concerned, on the ground of natural succession, the said dispute will be decided in the suit already filed by them against Sinder Kaur. They have denied the relationship of Sinder Kaur with Mehar Singh and hence, denied her natural succession to the property of Mehar Singh and Sher Singh. Hence, the said dispute will be decided in the suit already filed by present petitioners.

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It has been rightly observed by learned trial Court that on these facts, present petitioners are not necessary party to be impleaded in this suit, which is at the stage of arguments, as evidence of both the parties have

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Civil Revision No.2704 of 2011(O&M)

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already been concluded.

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In view of the aforementioned facts, it cannot be said that any illegality or material irregularity has been committed by learned trial Court in passing the impugned order or that a grave injustice or gross failure of justice has occasioned thereby, warranting interference by this Court.

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Moreover, law has been well settled by Hon'ble Apex Court in Surya Dev Rai v. Ram Chander Rai and others 2004(1) RCR (Civil) 147 that mere error of fact or law cannot be corrected in the exercise of supervisory jurisdiction by this Court. This Court can interfere only when the error is manifest and apparent on the face of proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law and that a grave injustice or gross failure of justice has occasioned thereby.

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Hence, the present revision petition is, hereby, dismissed being devoid of any merit.

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26.4.2011

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meenu

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(Ram Chand Gupta) Judge

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Note: Whether to be referred to Reporter? Yes/No.

Sarup Singh and Anr. v. Sinder Kaur and Ors.

Case brief

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Sarup Singh and Anr. v. Sinder Kaur and Ors.

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