Das, learned Senior Advocate relies upon the case of Asit Kumar Swain v. Krupasi
Case Details
Signature Not Verified Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Designation: SECRETARY Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 19-May-2023 18:48:51 IN THE HIGH COURT OF ORISSA AT CUTTACK CMP No.562 of 2023 Alaka Nayak …. Petitioner Mr. Sourya Sundar Das, Senior Advocate being assisted by Ms. Suman Modi, Advocate Aparti Puhan and another …. Opp. Parties -versus- CORAM: JUSTICE K.R. MOHAPATRA Order No.
Decision
ORDER 18.05.2023 1. 1. This matter is taken up through hybrid mode. 2. Order dated`27th March, 2023 (Annexure-3) passed by learned Senior Civil Judge, Athagarh, in CS (I) No.54 of 2020 is under challenge in this CMP, whereby learned trial Court directed to implead the recorded tenants of Khata No.23 as parties to the suit. 3. Mr. Das, learned Senior Advocate submits that Plaintiff is the Petitioner in this CMP. The suit has been filed for declaration of right, title and interest and for other consequential and ancillary relief. Evidence from both the sides has already been closed and the suit is at the stage of argument. At that stage, learned trial Court suo motu directed the Plaintiff to implead all the recorded tenants of ROR No.23 as parties to the suit. It is his submission that neither the Plaintiff claims any relief against the recorded tenants nor they have come up to implead themselves as parties to the suit. It is his submission that it is an inter se dispute between the two purchasers from a recorded tenant of Khata No.23. Thus, save and except the Page 1 of 3 Signature Not Verified Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Designation: SECRETARY Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 19-May-2023 18:48:51 // 2 // vender of the parties to the suit no other are either necessary or proper parties to the suit. In fact, two of the recorded tenants have been examined as witnesses on behalf of the Plaintiff. Since the Plaintiff is the dominus litis, she has the right to choose her contestant(s), against whom she would claim relief. Impleading the recorded tenants of Khata No.23 as parties to the suit will be academic one as their presence is necessary neither for effective nor for complete adjudication of the dispute between the parties. On the contrary, in that process, the disposal of the suit will be delayed. Of course, the Defendants have raised objection with regard to non-joinder of necessary parties, but learned trial Court can take said objection into consideration at the time of argument on the basis of materials available on record. In support of his submission Mr. Das, learned Senior Advocate relies upon the case of Asit Kumar Swain Vs. Krupasindhu Swain and another, 1992 (I) OLR 138, wherein this Court held as under:- 5. ……Therefore, applicant opp. party No. 2 had no semblance of legal right over subject-matter of suit. A person who has direct interest in the subject-matter of litigation can be impleaded as a party. (See AIR 1985 SC 886 : Razia Begum v. Sahabzadi Anwar Begum and Ors. Expression, direct interest' means direct interest in the issues between the plaintiff and the defendant. A person is legally interested in the question involved in the suit only if he can show that it may lead to a result that may affect him legally, that is curtailing his legal rights. Interest must be one which law recognises. …..” He further relies on a decision of a Hon’ble Division Bench of this Court in Gopal Krushna Badu Mohapatra and others Vs. Girish Chandra Nayak and others, reported in 87 (1999) CLT 628, wherein it is held as under:- Page 2 of 5 Signature Not Verified Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Designation: SECRETARY Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 19-May-2023 18:48:51 // 3 // “A party seeking such a joinder as a proper party will have to prima facie establish that such a party has interest in the subject-matter of the litigation and as such should be before the Court. The simple test in such controversy would be as to whether the presence of such a party is appropriate in view of the subject-matter in adjudication. If the answer be in the affirmative, joinder can be permitted. ….” He also relies upon the decision in the case of Kanakalata Das and others Vs. Naba Kumar Das and others, reported in 2018 (I) CLR (SC) 688, wherein deciding the principles of joinder of parties, Hon’ble Supreme Court at para-17 and 18, held as under:- “17. Fourth, the plaintiff being a dominus litis cannot be compelled to make any third person a party to the suit, be that a plaintiff or the defendant, against his wish unless such person is able to prove that he is a necessary party to the suit and without his presence, the suit cannot proceed and nor can be decided effectively. 18. In other words, no person can compel the plaintiff to allow such person to become the co-plaintiff or defendant in the suit. It is more so when such person is unable to show as to how he is a necessary or proper party to the suit and how without his presence, the suit can neither proceed and nor it can be decided or how his presence is necessary for the effective decision of the suit. (See-Ruma Chakraborty vs. Sudha Rani Banerjee & Anr., 2005(8) SCC 140)” In the instant case, none of the principles set out by this Court as well as Hon’ble Supreme Court is satisfied. Hence, the Petitioner should not be compelled to implead the parties against whom she does not claim any relief. It is also submitted that the recorded tenants of Khata No.23 has no semblance of any right in the subject matter of the suit in the changed circumstances. Learned trial Court, although referred to the decision in the case of Kanakalata Das (supra) and Gopal Krushna Badu Mohapatra (supra), but distinguished the same on facts. He, therefore, submits that the impugned order will be in no way Page 3 of 5 Signature Not Verified Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Designation: SECRETARY Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 19-May-2023 18:48:51 // 4 // helpful for just and proper adjudication of the suit. Hence, he prays for setting aside of the impugned order and to proceed with the suit. 4. Taking into consideration the submission made by learned counsel for the Petitioner, this Court finds that the Plaintiff/Petitioner does not want to implead the recorded tenants of Khata No.23 as parties to the suit. In the case of Sudhamayee Pattnaik -vs- Bibhu Prasad Sahoo and others, reported in 2022 SCC Online 1234, Hon’ble Supreme Court, held as under:- “11. At the outset, it is required to be noted that the defendants in the suit filed application under Order 1 Rule 10 CPC and prayed to implead the subsequent purchasers as party defendants. The suit is for declaration, permanent injunction and recovery of possession. As per the settled position of law, the plaintiffs are the dominus (sic) litis. Unless the court suo motu directs to join any other person not party to the suit for effective decree and/or for proper adjudication as per Order 1 Rule 10 CPC, nobody can be permitted to be impleaded as defendants against the wish of the plaintiffs. Not impleading any other person as defendants against the wish of the plaintiffs shall be at the risk of the plaintiffs. Therefore, subsequent purchasers could not have been impleaded as party defendants in the application submitted by the original defendants, that too against the wish of the plaintiffs.” Thus, a party can be impleaded in a proceeding either on the application of the Plaintiff or it is directed by the Court. Non- impletion of any party to the suit is of course is at the risk of the Plaintiff. In the instant case, since the Plaintiff/Petitioner opposes the impletion of recorded tenants of Khata No.23 as parties to the suit, their non-impletion will be at the risk of the Plaintiff. 5. In view of the above, this Court disposes of the CMP with an observation that learned trial Court may proceed with the suit without Page 4 of 5 Signature Not Verified Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Designation: SECRETARY Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 19-May-2023 18:48:51 // 5 // insisting upon impletion of the recorded tenants of Khhata No.23 as parties to the suit, which of course would be at the risk of the Plaintiff/Petitioner. Issue urgent certified copy of the order in course of the day on proper application. (K.R. Mohapatra) Judge s.s.satapathy Page 5 of 5