The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CMP NO. 800 OF 2024 …. Kalinga Bakery Pvt. Ltd., Bhubaneswar Petitioner Mr. Dipti Ranjan Mohapatra, Advocate -versus- Niharika Palta Singh Opp. Parties Mr. Tushar Kumar Mishra, Advocate on behalf of Mr. Satyabrata Mohanty, Advocate …. CORAM: JUSTICE K.R. MOHAPATRA Order No. 2. 1. 2.
Decision
ORDER 12.09.2024 This matter is taken up through hybrid mode. Order dated 20th April, 2024 (Annexure-1) passed in I.A. No.2 of 2024 (arising out of C.S. No.531 of 2023) is under challenge in this CMP, whereby learned Civil Judge (Junior Division), Bhubaneswar allowed an application for amendment filed by the Petitioner in a petition under Order XXXIX Rule 2- A C.P.C. 3. Mr. Mohapatra, learned counsel for the Petitioner submits that the suit has been filed for permanent injunction restraining the Defendants from evicting the Plaintiff-Opposite Party forcibly from the suit schedule shop room. During pendency of the suit, the Plaintiff-Opposite Party filed an application under Order XXXIX Rules 1 and 2 C.P.C. (I.A. No.1 of 2023) to restrain the Defendants from evicting the Petitioner (proforma Opposite Party Nos. 1 and 2), which was dismissed. Assailing the same, the Opposite Party filed FAO No.62 of 2023 and learned Additional District Judge, Bhubaneswar vide his judgment dated 24th July, 2023 directed the parties to maintain Page 1 of 5 status quo over the suit property till disposal of the suit. Said order was unsuccessfully challenged in CMP No.1395 of 2023. When the matter stood thus, the Plaintiff filed an application under Order XXXIX Rule 2-A C.P.C. (I.A. No.2 of 2024) impleading one M/s. Ami Food, C/o Kalinga Bakery Pvt. as party. Since the Opposite Party No.3, namely, M/s. Ami Food was described under the care of ‘Kalinga Bakery Pvt.’, the Petitioner, namely, M/s. Kalinga Bakery Pvt. Ltd. received the said notice and came to know about filing of the petition under Order XXXIX Rule 2-A C.P.C. and filed its objection. Thereafter, the Plaintiff filed an application for amendment of the cause title by deleting the name of “M/s Ami Food, C/o” and to add the word “Ltd.” after the words “M/s Kalinga Bakery Pvt.” Said amendment was allowed vide order under Annexure-1. Being aggrieved, this CMP has been filed. 3.1 Mr. Mohapatra, learned counsel further submits that the Petitioner is a complete stranger to the suit. Neither it is a party to the suit nor it was a party to the petition under Order XXXIX Rules 1 and 2 C.P.C. Thus, order of injunction, if any, is not binding on the Petitioner. Order of injunction being personal in nature, the Petitioner is neither a necessary nor a proper party to the proceeding under Order XXXIX Rule 2-A C.P.C. Thus, no petition for violation of the order of injunction/status quo is maintainable against the Petitioner. Learned trial Court without considering the same allowed the petition for amendment. Hence, this CMP has been filed. 3.2 Mr. Mohapatra, learned counsel submits that by impleading the Petitioner as a party to the proceeding under Page 2 of 5 Order XXXIX Rule 2-A C.P.C., a different cause of action against a stranger is substituted, which is untenable. 4. Mr. Mishra, learned counsel being authorized by Mr. Mohanty, learned counsel for Opposite Party submits that M/s. Ami Food Co., which is a proprietorship firm being managed by the Plaintiff, entered into a MoU with M/s. Kalinga Bakery Pvt. Ltd. During continuance of the order of status quo, said M/s. Kalinga Bakery Pvt. Ltd. damaged the shop room of the Plaintiff-Opposite Party totally and by putting its signage, namely, M/s. Kalinga Bakery Pvt. Ltd. in front of the suit shop room carried on business. Since M/s. Kalinga Bakery Pvt. Ltd. has entered into possession over the suit property by virtue of a MoU with Opposite Party, it is a necessary party to the proceeding under Order XXXIX Rule 2-A C.P.C.. He further submits that while adjudicating a petition for amendment, merit of the petition under Order XXXIX Rule 2-A C.P.C. should not be gone into. It can only be adjudicated taking into consideration the rival case of the parties and receiving evidence. That stage has not yet arrived. As such, learned trial Court has committed no error in allowing such petition. He further submits that description of Opposite Party No.3 was a typographical error and the name of M/s. Kalinga Bakery Pvt. Ltd. finds place in the plaint itself. Thus, it is not a stranger to the proceeding. By virtue of the amendment, the nature and character of the petition under Order XXXIX Rule 2-A C.P.C. was not changed. Hence, learned trial Court has committed no error in passing the impugned order. Page 3 of 5 5. Considering the submissions made by learned counsel for the parties, this Court finds that the Plaintiff-Opposite Party is the proprietor of M/s. Ami Food. It is categorically stated by the proforma Opposite Parties in the plaint that M/s Ami Food entered into a MoU with M/s. Kalinga Bakery Pvt. Ltd. on 1st February, 2021. Thus, the Petitioner is an authorized person claiming under M/s Ami Food, which is a proprietorship firm of Opposite Party. As such, learned trial Court has committed no error in allowing the petition for amendment. In fact, M/s Ami Food was described to be under the care of M/s. Kalinga Bakery Pvt. Ltd. in the cause title of the petition under Order XXXIX Rule 2-A C.P.C. and in that capacity, the Petitioner has received notice in the petition under Order XXXIX Rule 2-A C.P.C., as submitted by learned counsel for the Petitioner. So far as maintainability of the petition under Order XXXIX Rule 2-A C.P.C. against the Petitioner is concerned, the same should not be considered at the time of adjudication of the petition for amendment. It can only be gone into during adjudication of the petition under Order XXXIX Rule 2-A C.P.C. If the Petitioner is so aggrieved for initiation of the proceeding under Order XXXIX Rule 2-A C.P.C., it can raise objection to that effect during adjudication of the petition under Order XXXIX Rule 2- A C.P.C., which will be considered in accordance with law. Merit of the petition under Order XXXIX Rule 2-A C.P.C. against the Petitioner cannot be gone into at the time of adjudication of the petition for amendment. As such, learned trial Court has committed no error in allowing the petition for Page 4 of 5 amendment, which does not change the nature and character of the petition itself. 6. The contention Mr. Mohapatra, learned counsel that by addition of M/s. Kalinga Bakery Pvt. Ltd. as a party to the proceeding under Order XXXIX Rule 2-A C.P.C., it expands the scope and amounts to addition of a cause of action, can only be considered during adjudication of the petition under Order XXXIX Rule 2-A. C.P.C. 7. Hence, the CMP being devoid of any merit stands dismissed. Urgent certified copy of this order be granted on proper application. bks (K.R. Mohapatra) Judge Signature Not Verified Digitally Signed Signed by: BIJAY KUMAR SAHOO Reason: Authentication Location: High Court of Orissa, Cuttack Date: 13-Sep-2024 15:39:37 Page 5 of 5