SUSHILA DEVI Vs. YASHPAL JAIN

JUDGEMENT

(1.) The records reveal that the counsel, representing the private respondent, had put in appearance by filing his Authority in the present writ petition as back as on 18th October 2013. The suit in question itself has been instituted in 1982, and the same is yet pending consideration, because of various ancillary off shoot proceedings, which had taken place interse between the parties during the pendency of the suit. After about 6 years of pendency of the writ petition, even today the writ averments have not been denied by the private respondent by filing his counter affidavit, hence in view of the pronouncements, as laid by the Hon'ble Apex Court, as Smt. Naseem Bano v. State of U.P. and others,1993 2 AIR(SC) 2592, the writ averments would be taken on the face of it as to be true since remained uncontroverted. The similar principal has been enunciated by the Hon'ble Apex Court in the judgement as Express Newspapers Pvt. Ltd. and others v. Union of India and others, 1986 AIR(SC) 872, hence this Court has got no option except to proceed on the said premise that the writ averments remained uncontroverted.

(2.) The precise controversy, in case if it is to be summarised, it is that a revision being Civil Revision No. 2 of 2010, Susheela Devi and others v. Manoj Kumar Jain, was pending consideration before the Court of District Judge, Pauri Garhwal, as against the order dated 24.02.2010 deciding paper No. 170 (ka) and 184 (ga) was allowed but paper No. 173 (ga) was not decided by trial Court, which was though under challenge before it. During its pendency, the respondent herein claiming his rights on the basis of being the legal heir and son of late Urmila Jain, had filed an application under Order 1 Rule 10 of CPC on 1st December 2011 which was numbered as being paper No. 24 (ga), contending thereof that the attorney holder of late Urmila Jain, who was representing her interest in Suit No. 02 of 1982, for the relief of cancellation of sale and possession, it was being done by him on the basis of alleged registered Will dated 19.05.1999, which was said to have been executed in his favour by late Urmila Jain.

(3.) In those proceedings of the application, the case of the respondent was that earlier attorney holder of deceased Urmila Jain, i.e. Mr. Manoj Kumar Jain, since was working against her interest. Though he claimed to be holder of interest by virtue of registered Will dated 19.05.1999 executed in his favour. But later on because Manoj Jain projecting himself to be heir of late Urmila Jain on the basis of registered Will had sought to contest the proceedings of Original Suit No. 2 of 1982. The respondents impleadment application paper No. 24(ga) dated 01.02.2011, was filed on the ground that he is the legal heir and natural son who would succeed the estates of late Urmila Jain, and hence was necessary party to the proceedings for an effecting adjudication of the suit and the revision itself. In the meantime, the respondent Yashpal Jain filed an application paper No. 27C on 02.12.2012. In the application thus filed a prayer was sought that application paper No. 170 (ka) as filed earlier may be dismissed as not pressed.