The High Court
Case Details
Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 03-Sep-2024 13:49:11 IN THE HIGH COURT OF ORISSA AT CUTTACK CMP No. 117 OF 2024 Srikanta Kishor Bal and another …. Petitioners Ms. Mamata Mishra, Advocate -versus- Rabindranath Samal …. Opp. Party
Legal Reasoning
Mr. Kshirod Kumar Rout, Advocate CORAM: JUSTICE K.R. MOHAPATRA Order No.
Decision
ORDER 02.09.2024 4. 1. This matter is taken up through hybrid mode. 2. Order dated 19th January, 2024 (Annexure-1) passed in C.S. No.16 of 2015 is under challenge in this CMP, whereby learned Civil Judge, Chandikhole rejected an application filed by the Plaintiffs-Petitioners to implead Narayan Chandra Bal, Swarnalata Behura and Kanchanlata Jena as Defendant Nos.2 to 4 to the suit. 3. Ms. Mishra, learned counsel submits that the suit has been filed by the Plaintiffs-Petitioners for permanent injunction. The suit land was jointly purchased by the father of the Plaintiffs and father of the vendor of Defendant-Opposite Party, namely, Guru Charan Bal. However, the consolidation ROR was prepared exclusively in the name of said Guru Charan Bal, for which an application under Section 37 of the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972 is pending before the Commissioner. Since Page 1 of 5 Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 03-Sep-2024 13:49:11 the Defendant made an attempt to alienate the suit property and the Consolidation Authority has no jurisdiction to pass an order of injunction, this suit has been filed for the aforesaid relief. During pendency of the suit, the Plaintiffs had filed I.A. No.16 of 2015 for injunction. In the said I.A., the Defendant had filed objection stating inter alia that the vendor of the Plaintiffs is a necessary party to the suit. In his absence, the suit is bad for non- joinder of parties and is liable to be dismissed. The suit land has been recorded in the name of Guru Charan Bal and his son, namely, Narayan Chandra Bal sold the suit property to the Defendant. Thus, in order to avoid any complications in adjudication of the suit, the Plaintiffs-Petitioners filed an application for impletion of Narayan Chandra Bal (the vendor of the Defendant) and his sisters, namely, Swarnalata Behura and Kanchanlata Jena as Defendant Nos.2 to 4 to the suit. Learned trial Court holding that in F.A.O. No.35 of 2015, learned Additional District Judge, Jajpur directed for early disposal of the suit and the parties sought to be impleaded are not necessary parties, rejected the application by the impugned order. Hence, this CMP has been filed. 4. It is submitted by Ms. Mishra, learned counsel for the Petitioners that since the Defendant has taken a specific plea that his vendor is a proper party and in his absence, the suit is bad for non-joinder of party, his impletion is imperative to avoid multiplicity of litigation. She further submits that the land stands recorded in the name of Guru Charan Bal. After his death, interest in the suit devolved upon his successors. Thus, the Page 2 of 5 Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 03-Sep-2024 13:49:11 sisters of Narayan Chandra Bal are also proper parties to the suit and should have been impleaded. Learned trial Court without considering the fact that the party sought to be impleaded are proper parties and in their presence an effective decree can be passed, rejected the petition. Hence, she prays for setting aside the impugned order under Annexure-1. 5. Mr. Rout, learned counsel for the Defendant-Opposite Party vehemently objects to the same. It is his submission that no relief has been claimed against the parties, proposed to be impleaded to the suit. It is a suit for injunction and specific prayer has been made to pass an order of injunction against the Defendant. Further no right, title and interest is going to be decided in a suit for permanent injunction. Thus, the parties sought to be impleaded are neither necessary nor proper parties to the suit. In the objection to the petition for injunction, a formal objection was raised to the effect that the vendor of the Defendant is a proper party to the suit. But, he is neither a necessary nor proper party to the suit. The objection raised in the objection filed by the Defendant in the petition for injunction was a formal one and nothing to do for consideration of the application for impleadment of parties. Hence, he submits that learned trial Court has committed no illegality in rejecting the petition for impletion of parties. 6. Upon consideration of submissions made by learned counsel for the parties and perusing the materials on record, this Court finds that the Plaintiffs-Petitioners have filed the petition for impletion of parties stating that the vendor of the Defendant Page 3 of 5 Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 03-Sep-2024 13:49:11 as well as his siblings are proper parties to the suit. It also appears that the Defendant to the petition for injunction filed by the Plaintiffs raised an objection stating that the vendor of the Defendant is a proper party to the suit. It is also stated therein that in his absence, the suit is bad for non-joinder of necessary party and is liable to be dismissed. Thus, the Defendant has objection to non-impletion of proper parties to the suit. In view of the above, the submission of Mr. Rout, learned counsel for the Opposite Party that the objection raised by the Defendant to the Petition for injunction was a formal one and has nothing to do with the adjudication of the petition for impletion of parties, is not acceptable. Of course, the objection was filed in a petition for injunction and cannot be taken into consideration while adjudicating a petition for impletion of parties. But, it appears that it is the case of the Defendant that his vendor is a proper party to the suit. Thus, the vendor of the Defendant should have been impleaded as such. 7. So far as impletion of sisters of the vendor of Defendant, namely, Swarnalata Behura and Kanchanlata Jena is concerned, this Court finds that admittedly the consolidation ROR stands in the name of Guru Charan Bal, the father of Swarnalata Behura and Kanchanlata Jena. Although, right, title and interest is not going to be decided in a suit for injunction, but the Court may incidentally go into the question of right, title and interest while adjudicating the issue of injunction. If such an occasion arises, presence of Swarnalata Behura and Kanchanlata Jena may be necessary for complete adjudication of the suit. Undoubtedly, Page 4 of 5 Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 03-Sep-2024 13:49:11 the parties sought to be impleaded are not necessary parties. But, they are proper parties to the suit. As such, learned trial Court has committed an error in not impleading them as parties to the suit. It is further submitted that trial of the suit has not yet commenced. Thus, there is no legal impediment in considering impletion of parties at this stage. 8. In view of the above, the impugned order under Annexure-1 is not sustainable and is set aside. Learned trial Court is directed to implead Narayan Chandra Bal, Swarnalata Behura and Kanchanlata Jena as Defendant Nos.2 to 4 to the suit. 9. Since the suit is of the year, 2015, proper steps should be taken to see that it is disposed of at an early date. 10. The CMP is allowed to the aforesaid extent. Urgent certified copy of this order be granted on proper application. ms (K.R. Mohapatra) Judge Page 5 of 5