The High Court
Case Details
Signature Not Verified Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Designation: A.R.-CUM-SR. SECRETARY Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 13-Mar-2024 18:29:06 IN THE HIGH COURT OF ORISSA AT CUTTACK CMP No.158 OF 2024 Devavrat Devesh .... Petitioner In person -versus- Sandipta Kumar Hati and others …. Opp. Parties CORAM: JUSTICE K.R. MOHAPATRA Order No. 1.
Decision
ORDER 12.03.2024 1. 2. This matter is taken up through hybrid mode. Order dated 17th January, 2024 (Annexure-8) passed by learned Civil Judge (Senior Division), Bhubaneswar in CS No.1288 of 2023 is under challenge in this CMP, whereby an application filed by the Petitioner/Defendant No.7 for impletion of his General Power of Attorney holder, namely, M/s Devavrat Homes Private Limited as a party to the suit has been rejected. 3. The Petitioner, who appears in person, submits that he has been impleaded as Defendant No.7 in the suit. After purchase of the land in question, he executed a General Power of Attorney (GPA) in favour of M/s Devavrat Homes Private Limited. Thus, the Power of Attorney holder is a necessary party to the suit and in its absence, the suit cannot be effectively adjudicated. Learned trial Court holding that the land in question was not purchased through the Power of Attorney holder and in its absence the suit can be effectively adjudicated, rejected the petition. Hence, this CMP has been filed. 4. Mr. Devesh, the Petitioner further submits that the act done by his Power of Attorney holder cannot be explained by the Page 1 of 4 Signature Not Verified Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Designation: A.R.-CUM-SR. SECRETARY Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 13-Mar-2024 18:29:06 // 2 // Petitioner. The same can only be explicitly described before the Court by it. As such, it is a necessary party to the suit. Learned trial Court while rejecting the petition under Order I Rule 10(2) CPC also impliedly closed the door for the Petitioner to examine his Power of Attorney holder as a witness. As such, the impugned order under Annexure-8 is not sustainable. He also relied upon the provisions of Order III Rule 2 CPC and submits that the Power of Attorney holder can be impleaded as a party on behalf of the principal. He also relied upon the decision in the case of Man Kaur (Dead) by LRs. Vs. Hartar Singh Sangha, reported in (2010) 10 SCC 512, wherein the Hon’ble Supreme Court at para-18 (relevant portion of which) held as under:- “18. We may now summarise for convenience, the position as to who should give evidence in regard to matters involving personal knowledge: xx xx xx (b) If the attorney holder has done any act or handled any transactions, in pursuance of the power of attorney granted by the principal, he may be examined as a witness to prove those acts or transactions. If the attorney holder alone has personal knowledge of such acts and transactions and not the principal, the attorney holder shall be examined, if those acts and transactions have to be proved. xx xx xx (d) Where the principal at no point of time had personally handled or dealt with or participated in the transaction and has no personal knowledge of the transaction, and where the entire transaction has been handled by an attorney holder, necessarily the attorney holder alone can give evidence in regard to the transaction. This in case of principals carrying on business through authorized managers/attorney holders or persons residing abroad managing their affairs through their attorney holders.” frequently happens 4.1 These aspects were brushed aside by the learned trial Court, while passing the impugned order rejecting the petition Page 2 of 4 Signature Not Verified Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Designation: A.R.-CUM-SR. SECRETARY Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 13-Mar-2024 18:29:06 // 3 // under Order, I Rule 10 (2) CPC. Hence, he prays for setting aside the impugned order and to direct the Plaintiff to implead M/s Devavrat Homes Private Limited (the Power of Attorney holder of Petitioner/Defendant No.7) as a Defendant to the suit. 5. Upon hearing the Petitioner in person and on perusal of record, it appears that the suit has been filed by Opposite Party No.1 for declaration of right, title, interest, permanent injunction as well as for other reliefs. The Petitioner has been impleaded as Defendant No.7 in the suit. Petitioner/Defendant No.7 claims that he has purchased the suit property. He also claims that a Power of Attorney has been executed by the Petitioner in favour of M/s Devavrat Homes Private Limited on 15th January, 2011 to look after the property under Plot No.528 under Khata No.495 situated in mouza Padasahi, which is a part of the suit land. The Petitioner/Defendant No.7 wishes to implead his Power of Attorney holder as a Defendant to the suit on the plea that the Power of Attorney holder has done certain acts on his behalf. Such acts could not be explained by the Petitioner/Defendant No.7. 6. Plaintiff is the dominus litis. Admittedly, the Plaintiff/Opposite Party No.1 does not claim any relief against the Power of Attorney holder of Defendant No.7. When the Plaintiff does not claim any relief against such Power of Attorney holder, he should not be compelled to implead it as party to the suit. It is of course at the discretion of the Court, a party can be impleaded for just adjudication of a suit. In the instant case, neither learned trial Court feels that the Power of Attorney holder Page 3 of 4 Signature Not Verified Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Designation: A.R.-CUM-SR. SECRETARY Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 13-Mar-2024 18:29:06 // 4 // of Defendant No.7 should be a party nor the Plaintiff claims any relief against it. From the materials available on record, it is also not understood as to how presence of the Power of Attorney holder of Defendant No.7 is necessary for effective adjudication of the suit. No transaction has been made with the Power of Attorney holder of the Petitioner/Defendant No.7, which is the subject matter of the suit. Thus, it is neither necessary nor a proper party to the suit. 6.1 The second limb of argument of the Petitioner is that learned trial Court, while rejecting the petition under Order I Rule 10(2) CPC, deprived the Petitioner to examine his Power of Attorney holder as a witness. On perusal of the impugned order, I don’t find any material in support of such submission. Rather the impugned order is a well-reasoned one, which warrants no interference. 7. Accordingly, the CMP being devoid of any merit stands dismissed. (K.R. Mohapatra) Judge s.s.satapathy Page 4 of 4