The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CMP No. 430 OF 2015 Susama Gantayet …. Petitioners Mr. B. Das, Advocate -versus- Raghunath Bakshi and others …. Opp. Parties CORAM: JUSTICE K.R. MOHAPATRA Order No.
Decision
ORDER 22.02.2023 Misc. Case No.1458 of 2017 6. 1. This matter is taken up through hybrid mode. This is an application for substitution of the deceased 2. Opposite Party No.1, who died on 23rd July, 2017. 3. Considering the submission made by learned counsel for the Petitioner and averments made, substitution of legal heirs of deceased Opposite Party No.1, more fully, described in the schedule of the substitution petition [1(a) to 1(d)] is allowed. 4. Legal heirs of deceased Opposite Party No.1 shall be substituted as Opposite Party Nos.1(a) to 1(d) in his place. 5. I.A is accordingly disposed of. (K.R. Mohapatra) Judge CMP No. 430 OF 2015 7. 1. Order dated 10th March, 2015 (Annexure-3) passed by learned Civil Judge (Senior Division), Paralakhemundi, Gajapati in C.S. No.56 of 2013 is under challenge in this CMP, whereby an application filed under Order 1 Rule 3 read with Order VI Rule 17 C.P.C. for impletion of legal heirs of Kachan Bakshi as parties to the suit and to incorporate certain foundational pleading in respect of those legal heirs, has been rejected. Page 1 of 4 // 2 // 2. Mr. Das, learned counsel for the Petitioner submits that C.S. No.56 of 2013 has been filed by the Petitioner for a direction to Defendant No.1 to execute sale deed in favour of the Plaintiff- Petitioner in respect of the suit land, confirmation of possession of Plaintiff over the suit land, declaring that sale deed executed by Defendant No.2 in favour of Defendant Nos.3 and 4 in respect of the suit land as null, void, inoperative, unenforceable and not binding on the Plaintiff as well as for permanent injunction. It is his submission that Kachan Bakshi, the mother of the Petitioner was the recorded tenant in respect of the suit land. On 7th December, 1988, Defendant No.1, Raghunath Bakshi executed an agreement for sale in favour of the Plaintiff to execute the sale deed at a convenient date without fixing any stipulated date. By virtue of such agreement, the Plaintiff-Petitioner was delivered with possession of the suit land. When Defendant No.1 through his Power of Attorney holder Defendant No.2, sold the land to Defendant Nos.3 and 4, the Plaintiff filed the suit for the aforesaid relief. 3. Although the Defendants have already entered appearance, they had not filed their written statement by the time the petition under Order 1 Rule 3 read with Order VI Rule 17 C.P.C. was filed. The said application was filed for amendment of the plaint to implead other legal heirs of Kachan Bakshi, the recorded tenant, as parties to the suit, as in view of the Hindu Succession (Amendment) Act, 2005, the daughters are coparceners in the ancestral property. Thus, the Plaintiff-Petitioner sought to implead Saraswati and Sobhabati, the daughters of Kachan Bakshi as parties to the suit. As Saraswati was dead by the time the petition for amendment was filed, her legal heirs were sought to be impleaded. Learned trial Court without realizing the implication of the law and Page 2 of 4 // 3 // the purpose of filing the petition for amendment, rejected the same stating that they are not necessary parties to the suit. 4. It is his submission that since Sobhabati and the legal heirs of Saraswati have direct interest in the suit property, they should be impleaded as parties to the suit and foundational pleading in respect of the said parties should be allowed to be incorporated by way of amendment. In support of his case he relied upon the case of Kasturi -v- Iyyamperumal and others, reported in (2005) 6 SCC 733,wherein at Paragraph-7, it is held as under: that in a suit the necessary parties “7. In our view, a bare reading of this provision, namely, second part of Order 1 Rule 10 sub-rule (2) CPC would clearly for specific show performance of a contract for sale are the parties to the contract or if they are dead, their legal representatives as also a person who had purchased the contracted property from the vendor. In equity as well as in law, the contract constitutes rights and also regulates the liabilities of the parties. A purchaser is a necessary party as he would be affected if he had purchased with or without notice of the contract, but a person who claims adversely to the claim of a vendor is, however, not a necessary party. From the above, it is now clear that two tests are to be satisfied for determining the question who is a necessary party. Tests are — (1) there must be a right to some relief against such party the proceedings; (2) no effective decree can be passed in the absence of such party.” the controversies in respect of involved in He, therefore, submits that since Sobhabati and legal heirs of Saraswati have direct interest in the suit property, they should be impleaded as parties to the suit. 5. Although, the Opposite Parties are represented through their learned counsel, but none appears on their behalf at the time of hearing. 6. Considering the submission made by Mr. Das, learned counsel for the Petitioner and on perusal of the record, it is apparent that the suit has been filed for specific performance of contract, confirmation of possession of the Plaintiff over suit land and to declare the sale deed executed in Defendant Nos.3 and 4 to Page 3 of 4 // 4 // be null and void. As such, the relief of specific performance of contract is the main relief that is sought for in the suit. Other reliefs are either consequential or incidental to the main relief sought for in the suit. In view of the decision in Kasturi (supra), in a suit for specific performance of contract, only the parties to the contract are to be impleaded as necessary parties. Since other legal heirs of Kachan Bakshi are admittedly not parties to the contract, they are neither necessary nor proper parties to the suit. Further the legal heirs of the parties to the contract are to be impleaded as parties to the suit. Daughters of Kachan Bakshi and their legal heirs are neither of them. Hence, they are neither necessary nor proper parties to the present suit, as rightly held by learned trial Court. Further on perusal of the plaint, a copy of which was produced at the time of hearing of the CMP, it appears that no allegation in respect of the daughters of Kachan Bakshi or their legal heirs has been made in the plaint nor any relief has been sought for against them. Hence, I find no infirmity in the impugned order under Annexure-3. 7. Accordingly, the CMP being devoid of any merit stands dismissed. 8. Interim order dated 3rd April, 2015 passed in Misc. Case No.416 of 2015 stands vacated. 9. Since the suit is of the year, 2013, learned trial Court should make an endeavour for early disposal of the suit in accordance with law. Urgent certified copy of this order be granted on proper application. ms (K.R. Mohapatra) Judge Page 4 of 4