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: 28-Jun-2024 14:11:41 IN THE HIGH COURT OF ORISSA AT CUTTACK CMP NO.575 OF 2024 Sri Sri Sidhabhairabi Bije, Ganjam …. Mr. Tusar Kumar Mishra, Advocate -versus- Petitioner Sri Sri Sidhabhairabi Thakurani Bije, Ganjam and others …. Opp. Parties CORAM:
Decision
JUSTICE K.R. MOHAPATRA ORDER 27.06.2024 Order No. 01. 1. This matter is taken up through hybrid mode. 2. Order dated 27th March, 2024 (Annexure-5 Series) passed by learned 1st Additional Senior Civil Judge, Berhampur in CS No.27 of 2022 is under challenge in this CMP, whereby an application filed by the Opposite Party Nos.5 to 41 to be impleaded as parties to the suit, has been allowed. 3. Mr.Mishra, learned counsel for the Petitioner submits that the suit has been filed for declaration that the deity Sri Sri Sidhabhairabi Bije, At-Haradanga has right, title, interest and possession over the suit land and for declaration that the judgment and decree dated 10th August, 2017/17th August, 2017 passed by learned Civil Judge, (Junior Division), Berhampur in TS No.123 of 2002 is not binding on the deity and for perpetual injunction restraining the Defendant No.1 from encroaching upon the suit land and interfering in any manner with the affairs of the deity. After examination of four witnesses, Opposite Party Nos.5 to 41 filed a petition under Order I Rule 10 CPC to be impleaded as parties to the suit stating that they have interest over the suit property and the deity. 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: 28-Jun-2024 14:11:41 4. Mr. Mishra, learned counsel for the Petitioner further submits that the Commissioner of Endowments, Odisha, Bhubaneswar in exercise of power under Section 7 of the Odisha Hindu Religious Endowment Act, 1951 (for brevity ‘the Act’), has appointed the Sub-Collector, Berhampur as Interim Trustee of the Plaintiff-deity. Assailing the same, the Opposite Party Nos.5 to 41 filed W.P.(C). No.4175 of 2019, which was disposed of on 18th August, 2021 upholding the decision of the Commissioner of Endowments in appointing the Sub-Collector, Berhampur as the Interim Trustee of the Plaintiff-deity. The Opposite Party Nos.5 to 41 assailed the same before Hon’ble Supreme Court in SLP (C) No.18112 of 2021, which was disposed of vide order dated 18th July, 2023 directing the Commissioner of Endowments to dispose of the rival claims of the parties within a period of three months from the date of production of the said order. Accordingly, the Commissioner of Endowments confirmed the order of appointment of Sub-Collector, Berhampur as Interim Trustee of the Plaintiff-deity. When the matter stood thus, the Opposite Party Nos.5 to 41 filed an application under Order I Rule 10 CPC (Annexure-4) to be impleaded as parties to the suit suppressing the order passed by this Court and Hon’ble Supreme Court. Objection raising the aforesaid plea was filed by the Plaintiff- Petitioner. But, learned trial Court, without taking note of the same, passed the impugned order observing that FA No.20 of 2001 has been allowed and the matter was remitted to the Additional Assistant Commissioner of Endowments to adjudicate OA No.15 of 2000 afresh. He, therefore, submits that the impugned order suffers non-consideration of material facts as well as the objections raised by the Plaintiff-Petitioner. It is his 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: 28-Jun-2024 14:11:41 submission that in view of the ratio decided in the case of Sudhamayee Pattnaik and others vrs. Bibhu Prasad Sahoo and others, reported in 2022 SCC Online SC 1234, the Plaintiff, being the dominus litis, cannot be compelled to contest with a person with whom he does not want to litigate. Of course, learned trial Court, for just adjudication of the suit, may exercise the power for impletion of parties to the suit suo motu. The ratio decided therein was also not taken into consideration by learned trial Court. It is further submitted that Opposite Party Nos.5 to 41 are neither necessary nor proper parties to the suit. The suit can be effectively decided in their absence. Hence, the impugned order is not sustainable and is liable to be set aside. 5. Taking note of the submission made by learned counsel for the petitioner and on perusal of the record, the submission of Mr. Mishra, learned counsel for the Petitioner appears to be correct. Learned trial Court has not taken into consideration the objections raised by the Plaintiff-Petitioner. It has also not taken into consideration the ratio decided in Sudhamayee Pattnaik (supra). 6. In that view of the matter, this Court feels that the matter requires fresh consideration by learned trial Court. 7. Since issuance of notice to the Opposite Party Nos.5 to 41 will further delay this matter, this Court, keeping in mind the order proposed to be passed, dispenses with service of notice on them and proceeds to dispose of this CMP. 8. In view of the discussions made above, this Court finds that the impugned order under Annexure-5 series is not sustainable. 8.1 Accordingly, the order passed under Annexure-5 is set aside and the matter is remitted to learned trial Court for fresh 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: 28-Jun-2024 14:11:41 consideration of the petition under Order I Rule 10 CPC giving opportunity of hearing to the parties concerned and keeping in mind the discussions and observations made hereinabove. 9. This CMP is disposed of accordingly. 10. Since this CMP is disposed of without issuing notice to the Opposite Party Nos.5 to 41, they are at liberty to seek for variation of this order, if they feel aggrieved. Urgent certified copy of this order be granted on proper application. Rojalin (K.R. Mohapatra) Judge Page 4 of 4