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: 21-Dec-2023 16:52:41 IN THE HIGH COURT OF ORISSA AT CUTTACK CMP No. 438 OF 2023 Usha Halan and others Petitioners Mr. Sandipani Misra, Advocate …. -versus- Bijaya Kumar Halan and others …. Opp. Parties Mr. Rahul Mohanty, Advocate (For Opp. Party No.1) CORAM: JUSTICE K.R. MOHAPATRA Order No.
Decision
ORDER 20.12.2023 2. 1. This matter is taken up through hybrid mode. 2. Order dated 23rd February, 2023 (Annexure-4) passed by learned 2nd Additional Civil Judge (Senior Division), Cuttack in C.S. No.470 of 2010 is under challenge in this CMP, whereby an application filed by the Opposite Party No.1 to be impleaded as a party to the suit has been allowed. 3. Mr. Misra, learned counsel submits that the Petitioners are the legal heirs of the Plaintiff, namely, Ajay Halan. The suit is filed with the following prayers: “That under the premises stated above, it is humbly prayed that i) the Defendants declaring let a decree be passed in favour of the Plaintiff the and against Judgment dated 29.04.2006 and the final decree dated 02.09.2008 passed by this Hon'ble Court i.e. Civil Judge (Sr. Divn.), 1st Court, Cuttack in C. S. No. 234 of 2004 in respect of present suit schedule property to be collusive and not binding on the Plaintiff; let a decree be passed in favour of the Plaintiff the and against Registered Sale Deed No. 3349 dated 06.06.2008 to be not binding on the Plaintiff nor the same affects the right, title, interest and possession of the Defendants declaring ii) 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: 21-Dec-2023 16:52:41 // 2 // the Plaintiff over the suit schedule properties in any manner whatsoever; let a decree of permanent injunction be passed in favour of the Plaintiff and against the Defendants restraining the Defendants their men, agents, agnates etc. from interfering in the possession and enjoyment of the Plaintiff over the suit schedule property in any manner whatsoever; Let the cost of the suit be decreed in favour of the Plaintiff and against the Defendants; Let any other relief(s) be granted to which the Plaintiff is found entitled to.” iii) iv) v) 4. It is his submission that the suit is of the year, 2010 and the Plaintiffs claim declaration of the judgment and final decree passed in C.S. No.234 of 2004 to be a collusive one and not binding on them. They also claimed that the Registered Sale Deed dated 6th June, 2008 is not binding on them nor it affects their right, title interest and possession over the suit property as well as for permanent injunction. None of the prayer affects the right of the Opposite Party No.1 in the suit. It is his submission that the original Plaintiff and at present the Petitioners claim right over the property through the mother of the original Plaintiff. They never claimed declaration of their exclusive right, title, interest and possession over the suit property. Learned trial Court while adjudicating the matter failed to appreciate that by impleading the Opposite Party No.1 as a party, the scope of the suit will be expanded. The Plaintiffs will be compelled to litigate with a person against whom they do not claim any relief. On the other hand, if the suit is decreed, it will be to the benefit of Opposite Party No.1. If the Opposite Party No.1 wants a declaration, he may file a separate suit. However, the present petition under Order 1 Rule 10 CPC filed by the Opposite Party 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: 21-Dec-2023 16:52:41 // 3 // No.1 is misconceived. He, therefore, submits that the impugned order is sustainable and is liable to be set aside. 5. Mr. Mohanty, learned counsel for the Opposite Party No.1 vehemently objects to the same. It is his submission that if the suit is decreed in favour of the Plaintiff, then there is every likelihood that the Petitioners will claim their exclusive right, title, interest over the suit property. Order 1 Rule 10 CPC is meant to avoid multiplicity of litigation. Since the Opposite Party No.1 is the brother of the original Plaintiff, namely, Ajay Halan, he is a necessary party to the suit. The claim of the Opposite Party No.1 is neither against the original Plaintiff nor against his legal heirs, who have been substituted. The Opposite Party No.1 wants to sail with the Plaintiffs-Petitioners and his presence is necessary for just adjudication of the suit. Considering the same, learned trial Court has categorically held that the Opposite Party No.1 has a direct and substantial interest in the suit and his impleadment is necessary for complete and fair adjudication of the dispute. It is also rightly held by learned trial Court that impletion of the Opposite Party No.1 to the suit will not prejudice the Plaintiffs rather it would be instrumental in preventing multiplicity of proceeding. Hence, there is no infirmity in the impugned order under Annexure-4. Accordingly, he prays for dismissal of the CMP. 6. Considering the submissions made by learned counsel for the parties and on perusal of the record, more particularly, the petition under Order 1 Rule 10 CPC, it appears that the Opposite Party No.1 claims to be the brother of Ajay Halan, the original Plaintiff in the suit. It also appears that the suit was filed in the 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: 21-Dec-2023 16:52:41 // 4 // year, 2010 and in the meantime thirteen years have already elapsed. In the case of Sudhamayee Pattnaik and others –v- Bibhu Prasad Sahoo and others, reported in 2022 SCC Online SC 1234, it is categorically held that the Plaintiff is the dominus litis and it should not be compelled to litigate with a person against whom he does not claim any relief. The Court, of course, suo motu may direct impletion of a party for just adjudication of the suit. It is also held that non-impletion of a party to the suit is at the risk of the Plaintiff. 7. In the instant case, Mr. Mohanty, learned counsel for the Opposite Party No.1 claims that he wants to sail with the Plaintiffs claiming joint right, title, interest over the suit property. On perusal of the relief claimed in the suit, this Court finds that neither the original Plaintiff nor his legal heirs, who have been substituted, claim their exclusive right, title and interest over the property in the suit. The nature of relief claimed in the suit is not in favour of the Plaintiffs only. It further appears that if the suit is decreed, the legal heirs of the mother of the original Plaintiff would be benefited. Thus, presence of the Opposite Party No.1 is not necessary for just adjudication of the suit. It is further submitted by Mr. Misra, learned counsel for the Petitioners that the suit is posted for evidence. Thus, at this stage, if the Opposite Party No.1 is impleaded, it will further delay in disposal of the suit. 8. Since the Opposite Party No.1 is not going to be affected in any manner, if the suit is decreed and his presence is not necessary for complete adjudication of the suit, this Court feels that learned trial Court has not dealt with the matter properly. 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: 21-Dec-2023 16:52:41 // 5 // Accordingly, the impugned order under Annexure-4 is not sustainable. Hence, the same is set aside. 9. 10. The CMP is allowed to the aforesaid extent. Since the suit is of the year, 2010, learned trial Court should make all endeavour to see that it is disposed of at the earliest in accordance with law. Urgent certified copy of this order be granted on proper application. ms (K.R. Mohapatra) Judge Page 5 of 5