The High Court
Case Details
Signature Not Verified Digitally Signed Signed by: ROJALIN NAYAK Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 16-Jul-2024 14:36:53 IN THE HIGH COURT OF ORISSA AT CUTTACK CMP NO.696 OF 2024 Praful Kumar Behera …. Petitioner Mr. Sushree Sunil Kanta Nayak, Advocate -versus- State of Odisha and another
Legal Reasoning
…. Opp. Parties Mr. Amiya Kumar Mishra, Additional Government Advocate CORAM:
Decision
JUSTICE K.R. MOHAPATRA ORDER 15.07.2024 Order No. 01. 1. This matter is taken up through hybrid mode. 2. Order dated 22nd March, 2024 (Annexure-3) passed by learned Civil Judge, (Junior Division), Anandapur in CS No.62 of 2019 is under challenge in this CMP, whereby learned trial Court rejected an application filed by the Plaintiff-Petitioner under Order VI Rule 17 read with Order I Rule 10 CPC. 3. Mr. Nayak, learned counsel for the Petitioner submits that the suit has been filed for declaration of right, title and interest through adverse possession and for confirmation of possession over the suit property. 4. Initially, only the State of Odisha and Tahasildar, Ghasipura were impleaded as Defendants to the suit. But, during pendency of the suit, on 9th January, 2024, the Secretary, Regulated Marketing Committee, (RMC), Anandapur through its labourers entered upon the suit land and cut down the standing trees for construction of a permanent building. Thus, the Plaintiff sent the notice under section 80 CPC to its Secretary on dated 11th January, 2024 which has received by the Secretary on 12th January, 2024. After expiry of the statutory period, an application Page 1 of 4 Signature Not Verified Digitally Signed Signed by: ROJALIN NAYAK Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 16-Jul-2024 14:36:53 under order VI Rule 17 read with Order I Rule 10 CPC was filed to implead Secretary, RMC, Anandapur as a party to the suit as well as to incorporate the foundational pleadings thereto. Learned trial Court, observing that the evidence from both the sides has been closed and the suit is posted for argument and that the Plaintiff has not made out any case to implead the Secretary, RMC, Anandapur as a party to the suit, rejected the petition. Hence, this CMP has been filed. 5. Mr. Nayak, learned counsel for the Petitioner further submits that the cause of action for filing of the petition arose on 9th January, 2024. By that time, evidence from both the sides was completed in the suit. Further, the petitioner complied with the provision under Section 80 CPC and then filed the petition as aforesaid. It is his submission that the Petition should have been allowed to avoid multiplicity of litigations and for final adjudication of lis between the parties. He also relied upon the decision in the case of AMICS Nakati Deula being a registered Cooperative Society, represented through its I.P.O.-cum- Managing Director, Santanu Kumar Bhoi -v- Prana Krishna Pradhan and another, reported in (2022) II CLR 225, wherein this Court has held as under: “4. Considering the rival contentions of the parties and going through the application under Order 1, rule 10 of the Code of Civil Procedure, this Court finds there is foundation disclosing the third party also having interest over the disputed property, for the nature of application taken up for consideration, it becomes the duty of the Court to see whether third party has a right to be considered in the suit or not? Further, as the property involved in the suit has been claimed to be also the property of the third party involving his previous transaction, for the opinion of this Court, inclusion of such party should not be construed as allowing the suit. Inclusion of such party at this stage only bringing any further dispute involving the same property and also to resolve all such issue involving such property in one go. Such attempt will also avoid multiplicity of Page 2 of 4 Signature Not Verified Digitally Signed Signed by: ROJALIN NAYAK Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 16-Jul-2024 14:36:53 litigation This Court takes into account the decision of the Hon’ble Apex Court in the case of Rahul S.Shah v. Jinendra Kumar Gandhi and Ors 2021 (II) CLR (SC) 92 (2021) 6 SCC 418 where the Hon’ble Apex Court in deciding a case involving recovery of possession of disputed property observed in such contingency the parties likely to be affected, if necessary, even to be brought, if required, entering into paper publication. This Court here finds the party volunteer to come in a suit involving recovery of possession. The decision in the Rahul S.Shah case has direct application to the case at hand.” 5.1. He, therefore, submits that since RMC, Anandapur has an interest over the suit property, they are necessary parties to the suit. Learned trial Court, misconstruing the petition to be one under Order VI Rule 17 CPC only, rejected the same. Hence, this CMP has been filed. 6. Taking note of the submission made by learned counsel for the Petitioner and on perusal of record, this Court finds that the suit is at the stage of argument. Further, on perusal of the petition for amendment under Annexure-2, it is clear that except the bald statement to the effect that on 9th January, 2024, some labourers engaged by the Secretary, RMC, Anandapur entered upon the suit land and cut down the trees for construction of a permanent building, no other material is available on record to arrive at a conclusion that the proposed amendment is necessary for just adjudication of the suit. 7. Mr. Mishra, learned Additional Government Advocate also submits that although the State of Odisha did not file any objection to the petition as aforesaid, but, at the time of adjudication of the petition, they have contended that such an application is not maintainable at a belated stage. It also appears that the Plaintiff has not stated the cause of action against the Secretary, RMC, Anandapur. It is, however, submitted by Mr. Nayak, learned counsel for the Petitioner that the averment in the Page 3 of 4 Signature Not Verified Digitally Signed Signed by: ROJALIN NAYAK Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 16-Jul-2024 14:36:53 petition under Annexure-2 itself shows that the cause of action arose on 9th January, 2024 against the secretary, RMC, Anandapur. But, on perusal of the petition, it appears that the Petitioner only sought to amend one paragraph, i.e., para-13 to incorporate the aforesaid allegation and nothing more. It is also not stated as to how non-impletion of Secretary, RMC, Anandapur as a party to the suit and by not incorporating the proposed amendment, the suit cannot be decided effectively, more particularly, when no relief is claimed against RMC, Anandapur either in the plaint or in the schedule of amendment. 8. The Petitioner, in the present suit, prays for declaration of right, title and interest through adverse possession. Thus, onus is on the Plaintiff to prove the same. 9. In that view of the matter, more particularly, when the suit is at the stage of argument, learned trial Court has rightly refused to entertain the application which was filed only to linger the proceedings of the suit. 10. As such, this CMP, being devoid of any merit, stands dismissed. Urgent certified copy of this order be granted on proper application. Rojalin (K.R. Mohapatra) Judge Page 4 of 4