The High Court
Case Details
Signature Not Verified Digitally Signed Signed by: ROJALIN NAYAK Designation: JUNIOR STENOGRAPHER Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 31-Aug-2024 17:59:08 IN THE HIGH COURT OF ORISSA AT CUTTACK CMP NO.12 OF 2023 (In the matter of an application under Article 227 of the Constitution of India) ***** Rabindra Kumar Sahu and others …. Petitioners Sabitri Sahu and others …. Opp. Parties -versus- Advocate for the Parties :
Legal Reasoning
For Petitioner : Mr. Vivekananda Jena, Advocate For Opposite Parties : Ms. Pragnya Mohanty, Advocate CORAM:
Decision
JUSTICE K.R. MOHAPATRA -------------------------------------------------------------------------- Heard and disposed of on 30.08.2024 -------------------------------------------------------------------------- J U D G M E N T CMP Nos.1467 OF 2023 & 12 OF 2023 1. 2. This matter is taken up through hybrid mode. CMP No.1467 of 2023 has been filed assailing the order dated 3rd December, 2022 (Annexure-2) passed by learned Civil Judge (Senior Division), Soro in CS No.60 of 2017, whereby an application filed by the third party interveners (present Petitioners) to be impleaded as parties to the suit, has been rejected. 3. In CMP No.12 of 2023, the Plaintiffs-Petitioners have challenged the order dated 5th December, 2022 (Annexure-6) passed by the same Court in CS No.55 of 2018 allowing an CMP NO.12 OF 2023 Page 1 of 5 Signature Not Verified Digitally Signed Signed by: ROJALIN NAYAK Designation: JUNIOR STENOGRAPHER Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 31-Aug-2024 17:59:08 application filed by the Opposite Party Nos.1 to 8 (Petitioners in CMP No.1467 of 2023) for impletion of parties to the suit. 4. Since the parties to both the CMPs are common and common questions of facts and law arise for consideration, both the CMPs are taken up together for the sake of convenience. For the sake of convenience in discussion, the Petitioners in CMP No.12 of 2023 are described as Plaintiffs and the Petitioners in CMP No.1467 of 2023 are described as Interveners. 5. The Plaintiffs filed both the suits for partition of different parcels of land. The Interveners claiming themselves to be the LRs of one Bhagabat Sahoo filed Petition for intervention in both the suits, whereas the petition for intervention filed in CS No.55 of 2018 was allowed by learned trial Court, such an application was rejected in CS No.60 of 2017. The common question that arises for consideration as to whether learned trial Court judiciously adjudicated the petitions for intervention filed in both the suits. 6. Mr. Jena learned counsel for the Plaintiffs submits that both the suits were filed for partition of different parcels of the joint family property. In the MS ROR, the land in question stands recorded jointly in the name of Bhagabat Sahoo, Sanatan Sahoo, Damodar Sahoo and Sridhar Sahoo. The Interveners claimed to be the LRs of late Bhagabat sahoo. The Plaintiffs have categorically stated in both the plaints, i.e., plaint of CS No.60 of 2017 and CS No.55 of 2018 that the second son of Atanga died leaving behind only son Nandai as his sole LR. Nandai died leaving behind his son Bhagabat as his LR and Bhagabat during his life time, sold all his ancestral property to his co-sharers and others. Thus, Bhagabat had no share in the suit property. Said CMP NO.12 OF 2023 Page 2 of 5 Signature Not Verified Digitally Signed Signed by: ROJALIN NAYAK Designation: JUNIOR STENOGRAPHER Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 31-Aug-2024 17:59:08 Bhagabat was unheard in the village since last 30 years. It is also stated that there is no clinching material on record to show that the Interveners are LRs of said Bhagabat. Two earlier applications for the self same relief that for intervention were dismissed either for default of the Interveners or as withdrawn. Thus, a third application for intervention is not maintainable. Learned trial Court, although recorded the objection in the impugned order in CMP No.12 of 2023, but failed to discuss about the same. He further submits that on similar facts and circumstances, learned trial Court rejected the intervention application in CS No.60 of 2017, which is impugned by the interveners in CMP No.1467 of 2023. He, therefore, submits that parity should be maintained in dealing with the application for intervention in CS No.55 of 2018. But, without taking note of the same, the impugned order in CMP No.12 of 2023 has been passed, which is not sustainable. 7. Ms. Mohanty, learned counsel for the Interveners in both the CMPs vehemently objects to the same. It is her submission that in the order dated 3rd December, 2022 passed in CS No.60 of 2017, which is impugned in CMP No.1467 of 2023, learned trial Court although held that the name of the Bhagabat finds place in the MS ROR, and there are materials on record to show that the interveners are LRs of Bhagabat, but refused to entertain the application on the ground that the Interveners do not have any direct interest in the suit property. However, on the self same consideration, the petition for intervention filed by the Interveners in CS No.55 of 2018 was allowed, which is impugned by the Plaintiffs in CMP No.12 of 2023. She, therefore, submits that parity should be maintained by allowing the petition as has been done in CS No.55 of 2018. CMP NO.12 OF 2023 Page 3 of 5 Signature Not Verified Digitally Signed Signed by: ROJALIN NAYAK Designation: JUNIOR STENOGRAPHER Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 31-Aug-2024 17:59:08 8. 9. Heard learned counsel for the parties. On perusal of records in both the CMPs, this Court finds that in MS ROR, the suit property has been jointly recorded in the name of Bhagaban Sahoo, Sanatan Sahoo, Damodar Sahoo and Sridhar Sahoo, as observed by learned trial Court in the orders impugned in both the CMPs. Learned trial Court has also held from the materials like Aadhaar Cards, Voter ID Card of the Interveners and death certificate of Bhagabat Sahoo, it appears that interveners are LRs of said Bhagabat. While in one suit, i.e., in CS No.55 of 2018, learned trial Court allowed the application for intervention, but, on the same consideration, in CS No.60 of 2017, rejected the application for intervention. The present applications for intervention were filed when both the suits were posted for argument. 10. But, the fact remains that earlier two applications for intervention by the Interveners were either dismissed for default or dismissed as withdrawn. Learned trial Court, although referred to the above while discussing the case of the parties in the order passed in CS No.55 of 2018, but did not discuss the same while recording its finding. It further appears that specific objection to that effect was raised by the Plaintiffs and Defendants in both the suits. Law is well settled that principles of res judicata operate at different stages of the same proceeding or suit. It further appears that in the order passed in CS No. 60 of 2017, the aforesaid fact was not at all discussed, although raised in objection. 11. In that view of the matter, this Court finds that intervention applications filed in both the suits require fresh consideration CMP NO.12 OF 2023 Page 4 of 5 Signature Not Verified Digitally Signed Signed by: ROJALIN NAYAK Designation: JUNIOR STENOGRAPHER Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 31-Aug-2024 17:59:08 keeping in mind the observations made hereinabove and giving opportunity of hearing to the parties concerned. 12. Accordingly, the impugned orders dated 3rd December, 2022 in CMP No.1467 of 2023 and 5th December, 2023 in CMP No.12 of 2023, are set aside and the matters are remitted to learned trial Court for fresh consideration of the applications filed by the Interveners under Order I Rule 10 CPC giving opportunity of hearing to the parties concerned keeping in mind the observations made hereinabove. It is made clear that this Court has not expressed any opinion on the merits of the case of either of the parties. 13. Since the suit is at the stage of argument, learned trial Court should take care to dispose of the applications filed under Order I Rule 10 CPC at the earliest. 14. With the aforesaid observations and directions, these CMPs are disposed of. 15. Interim order dated 10th January, 2023 passed in IA No.12 of 2023 of CMP No.12 of 2023 stands vacated. Urgent certified copy of this judgment be granted on proper application. High Court of Orissa, Cuttack The 30th Day of August, 2024//Rojalin// (K.R. Mohapatra) Judge CMP NO.12 OF 2023 Page 5 of 5