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: 30-Sep-2024 11:53:10 IN THE HIGH COURT OF ORISSA AT CUTTACK CMP NO. 672 OF 2024 Usharani Swain …. Petitioner Mr. Bibhuti Bhusan Mishra, Advocate -versus- Biswambar Rout and others …. Opp. Parties CORAM:
Decision
JUSTICE K.R. MOHAPATRA ORDER 27.09.2024 Order No. 01. 1. This matter is taken up through hybrid mode. 2. The Petitioner in this CMP seeks to assail the order dated 3rd May, 2023 (Annexure-6) passed in R.F.A No.4 of 2021, whereby learned 3rd Additional District Judge, Cuttack allowed an application under Order I Rule 10 CPC filed by Opposite Party No.1. 3. Mr. Mishra, learned counsel for the Petitioner submits that Civil Suit No.165 of 2012 has been filed by the Petitioner for declaration of right, title, interest and for permanent injunction. The Intervener- Opposite Party No.1 was not a party to the suit. The suit was decreed vide judgment dated 2nd November, 2020 with the following order; “The suit be and the same is decreed ex parte against the Defendant No.1 to 19 and on contest against Defendant No.20. The right, title, interest of the Plaintiff over the suit property vide Settlement Khata No.9 Plot No.450 area Ac.0.88 dec. out of area Ac.2.31 dec. corresponding to Consolidation Khata No.7 Plot No.706 area Ac.0.88 dec. in the Mouza-Kunheipada, Cuttack is hereby declared that she is the absolute owner in possession of the suit property Page 1 of 4 Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 30-Sep-2024 11:53:10 mentioned hereinabove on the strength of a registered sale deed vide Ext-4. The possession of the Plaintiff over the suit property is also confirmed. The Registered sale deed bearing No.7743 dated 10.8.2011 executed by Defendant Nos.11 to 16 in favour of Defendant No.20 transferring Schedule-B property along with other properties is declared null and void having no validity in the eye of law. Ext.A does not convey any right, title, interest and possession of Schedule-B property in favour of Defendant No.20. The Defendant No.20 is hereby restrained by an order of permanent injunction from interfering in the peaceful possession of the Plaintiff over the suit property. In the fact and circumstances of the case, the parties are to bear their respective costs”. 4. In was also held by learned trial Court that sale deed in respect of the suit property executed in favour of Defendant No.20 is void and not binding on the Plaintiff. Assailing the judgment and decree passed in C.S No.165 of 2012, Defendant No.20 filed RFA No.4 of 2021, which is at present pending in the Court of learned 3rd Additional District Judge, Cuttack. During pendency of the appeal, the Opposite Party No.1 filed an application under Order I Rule 10 CPC with a prayer to implead him as a party stating that he has purchased the suit property from Defendant No.20 vide Registered Sale Deed No.11604 dated 17th December, 2011. Copy of the sale deed in question was not served on the Petitioner. Thus, he was in dark about the contents of the sale deed. But from the impugned order under Annexure-6, she came to learn that the Intervener- Opposite Party No.1 has purchased Plot No.836 vide Registered Sale deed No.11604 dated 17th December, 2011. However, Plot No.706 is the suit plot. Learned Appellate Court while adjudicating the matter did not verify the sale deed upon which the Opposite Party No.1 relied upon claiming right over the suit Plot. The land purchased by Opposite Party No.1 being different than the suit plot, he could not have Page 2 of 4 Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 30-Sep-2024 11:53:10 been impleaded as Respondent against the wish of the Petitioner, who is the Plaintiff. Further, the presence of Opposite Party No.1 is not necessary for just adjudication of the appeal. An effective decree can be passed in his absence. Since the copy of the sale deed in question was not served on the Petitioner, which was specifically mentioned in the objection, the Petitioner could not know the description of the property purchased by Opposite Party No.1 and made an elaborate objection to the same. He, therefore, prays for setting aside the impugned order under Annexure-6 and to remit the matter to learned Appellate Court for fresh adjudication of the petition under Order I Rule 10(2) CPC giving opportunity to the Petitioner to file a fresh objection. 5. Upon hearing Mr. Mishra, learned counsel for the Petitioner, this Court finds that specific objection was raised by the Petitioner at Paragraph-4 of his objection to the petition under Order I Rule 10(2) CPC stating that copy of the Registered Sale deed No.11604 dated 17th December, 2011 was not served on him. It is further submitted that the plot number mentioned in Registered Sale Deed No.11604 dated 17th December, 2011 is different than the suit Plot. If that be so the Petitioner should be given an opportunity to put forth his case before learned Appellate Court for fresh consideration of the petition under Order I Rule 10(2) CPC. 6. In view of the above, the impugned order under Annexure- 6 is set aside and the matter is remitted to Learned 3rd Additional District Judge, Cuttack to adjudicate the matter afresh providing opportunity to the Petitioner to file a fresh objection to the Petition Page 3 of 4 Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 30-Sep-2024 11:53:10 under Order I Rule 10(2) CPC giving opportunity to hearing to the parties concerned. 7. 8. The CMP is accordingly disposed of. Since the CMP is disposed of without issuing notice to the Opposite Party No.1-Applicant in the Petition under Order I Rule 10(2) CPC, he is at liberty to seek for variation of this order, if he feels aggrieved. Urgent certified copy of this order be granted on proper application. Jayakrushna (K.R. Mohapatra) Judge Page 4 of 4