The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CMP No.397 of 2025 Mousumi Srivastav Petitioner …. Mr. P.K. Satapathy, Advocate -Versus- Rama Pattnaik & others …. Opposite Parties Mr. B. Nayak, Advocate CORAM: MR. JUSTICE R.K. PATTANAIK ORDER 14.05.2025 Order No. 03. 1.
Legal Reasoning
Heard Mr. Satapathy, learned counsel for the petitioner and Mr. Nayak, learned counsel for opposite party Nos. 1 to 4. 2. No notice is issued to opposite party No.5 as the same is not necessary, hence, dispensed with. 3. Instant petition is filed by the petitioner assailing the impugned decision by order dated 10th February, 2025 passed in connection with C.S. No.238 of 2019 by learned Senior Civil Judge, Rourkela, whereby, an application for impletion under Order 1 Rule 10 CPC pressed into service by her seeking impletion in the suit as a defendant has been declined. 4. Mr. Satapathy, learned counsel for the petitioner submits that the petitioner is a necessary party or at least, a proper party to the suit, hence, therefore, such an application under Order 1 Rule 2 C.P.C. was moved but it has not been found favour with learned Page 1 of 5 court below leading to the passing of the impugned order i.e. Annexure-1. The further submission is that opposite party No.5 is the husband of the petitioner and he is claimed to be a tenant and hence, the suit is for eviction, whereas, in respect of the suit premises, there is an agreement for sale in favour of the petitioner, hence, therefore, she was sought to be impleaded as one of the defendants but it has not been taken judicial notice of by learned Court below and was followed by the impugned order dated 10th February, 2025 i.e. Annexure-1. Mr. Satapathy, learned counsel for the petitioner further submits that unless the petitioner is impleaded as a party, she would be forced to institute a separate suit, which would amount to multiplicity of proceedings and therefore, the impugned order at Annexure-1 is liable to be interfered with. While advancing such an argument, Mr. Satapathy, learned counsel referred to a decision of the Apex Court in Rahul S. Shah Vrs. Jitendra Kumar Gandhi and others 2021 6 SCC 418 to contend that in appropriate cases, as has been observed therein, a Court must add all necessary or proper parties to the suit so as to avoid multiplicity of actions and also to make such joinder of cause of action in the same suit. 5. Mr. Nayak, learned counsel for opposite party Nos.1 to 4, on the other hand, justifies the impugned decision declining impletion of the petitioner. It is submitted that such a claim for impletion of the petitioner is on the strength of an unregistered agreement for sale by a 3rd party. The further submission of Mr. Nayak, learned counsel is that the father of opposite party Nos.1 to 4 allegedly executed an agreement for sale in favour of the 3rd party, who further executed such an agreement purportedly in favour of the petitioner, namely, wife of opposite party No.5 with Page 2 of 5 the claim as to delivery of possession. It is submitted that any such sale agreement in favour of the petitioner was to be registered compulsorily when there is delivery of possession and therefore, in absence of the same, Mr. Nayak, learned counsel would further submit that in view of the decision of the Apex Court in Suraj Lamp & Industries Pvt. Ltd. Vrs. State of Haryana and Another (2011) 11 SCR 848, it neither created any title nor interest in respect of such immovable property, That apart, one more decision of the Apex Court in Sanjay Sharma Vrs. Kotak Mahindra Bank Ltd. & others in Special Leave to Appeal (C) No(s). 330 of 2017 dated 30th May, 2016 is placed reliance on by Mr. Nayak, learned counsel to contend that no title is to pass on any such unregistered agreement for sale in absence of conveyance deed. The contention is that in view of the settle legal position and as the earlier, a similar request of opposite party No.5 was followed by an order at Annexure-3 with regard to impletion of the petitioner and the same was not challenged thereafter, further request for impletion at the behest of petitioner should not be entertained, more particularly when, the interest is claimed and to have been acquired from a 3rd party under an unregistered agreement for sale. 6. A copy of the plaint is at Annexure-2 and the same is perused. In fact, the petitioner moved the Court below seeking impletion as per Annexure-5 and it was followed by an objection from opposite party Nos.1 to 4. The claim of the petitioner is that she has been in possession of an agreement for sale by the 3rd Party, in whose favour, a similar agreement had been executed. A copy of the agreement with the 3rd Party as at Annexure-6 series is a registered one. It is not in dispute that no conveyance deed has been executed in favour of the 3rd Party, namely, Sujata Singh Page 3 of 5 Sawhney. The claim is that the original recorded tenant executed a power of attorney in favour of the husband of Sujata Singh Sawhney and thereafter, the unregistered agreement for sale has arrived. Admittedly, there has been no conveyance consequent upon the agreement for sale in favour of the petitioner. As far as opposite party No.5 is concerned, he is alleged to have been inducted as a tenant and hence, the suit for eviction but the said claim is denied by him supplemented by a plea that the possession is on the strength of unregistered agreement executed in favour of the petitioner. 7. Having regard to the above facts, the Court is of the view that the suit is for eviction simplicitor and even in absence of the petitioner, opposite party No.5 can defend the same with reference to the agreement for sale, though, the same is not registered. The admissibility of any such agreement of sale since unregistered and having been challenged by opposite party Nos.1 to 4 is definitely to be gone into by the learned Court below while disposing of the suit and therefore, the impletion of the petitioner is unnecessary and hence, it has to be held that learned Court below did not commit any error or illegality denying the same followed by the impugned order i.e. Annexure-1. Even though the Apex Court in Rahul S. Shah (supra) held and observed that in appropriate cases a party to be impleaded, who is considered necessary or at least, a proper party to the suit the purpose being to avoid multiplicity of the proceedings but in the peculiar facts and circumstances of the present case, the Court is of the conclusion that impletion of the petitioner is not required. If any such claim is advanced by the petitioner, on the strength of unregistered agreement for sale, she is at liberty to institute a suit against opposite party Nos.1 to 4. But, Page 4 of 5 for the present, in view of opposite party No.5 as the sole defendant, there is no need for her impletion and therefore, in ultimate view of the Court, no wrong has been committed by learned Court below, while dealing with the application under Order 1 Rule 10 CPC and hence, the impugned order dated 10th February, 2025 at Annexure-1 does not call for interference. 8. 9. Hence, it is ordered. In the result, the CMP stands dismissed. It is directed that the learned Court below shall proceed to deal with and dispose of the suit according to law at the earliest but within a reasonable
Decision
period. In the circumstances, however, there is no order as to costs. 10. Urgent certified copy of this order be issued as per rules. (R.K. Pattanaik) Judge Balaram Signature Not Verified Digitally Signed Signed by: BALARAM BEHERA Reason: Authentication Location: OHC, CUTTACK Date: 15-May-2025 10:46:43 Page 5 of 5