The High Court · 2025
Case Details
Signature Not Verified Digitally Signed Signed by: SANGRAM DAS Reason: Authentication Location: High Court of Orissa, Cuttack Date: 01-Sep-2025 18:17:42 IN THE HIGH COURT OF ORISSA AT CUTTACK C.M.P. No.1229 of 2025 (In the matter of an application under Article 227 of the Constitution of India) Chandana Chakradhar Rao …. Petitioner -versus- Chandana Jagan Mohini & Ors. …. Opposite Parties Advocate(s) appeared in this case:- For Petitioner
Legal Reasoning
: Mr. J.R.Dash, Advocate For Opposite Parties : Mr. S.S.Rao, Sr.Advocate CORAM: JUSTICE B.P. ROUTRAY JUDGMENT 1st September 2025 B.P. Routray, J. 1. Heard Mr. J.R.Dash, learned counsel for the Petitioner and Mr. S.S.Rao, learned Senior Counsel for Opposite Parties. 2. Present CMP is directed against impugned order dated 5th April 2025 passed in C.S. No.71 of 2015 by learned Senior Civil C.M.P. No.1229 of 2025 Page 1 of 7 Signature Not Verified Digitally Signed Signed by: SANGRAM DAS Reason: Authentication Location: High Court of Orissa, Cuttack Date: 01-Sep-2025 18:17:42 Judge, Rayagada, wherein the prayer to implead Defendant Nos. 2, 3, 4 and 7 has been refused. 3. The Petitioner is the plaintiff who filed the suit praying for partition. Among the Defendants, notice could not be made sufficient on Defendant Nos. 2, 3, 4 and 7 for the fault on the part of the Plaintiff due to failure to provide their correct addresses. As such, for non-taking appropriate steps by the Plaintiff against Defendant Nos. 2, 3, 4 and 7, the suit was dismissed against them vide order dated 4th March 2016 of learned Trial Court. Thereafter the Plaintiff filed a petition dated 2nd August 2016 praying to recall that order dated 4th March 2016 and to continue the suit against those Defendants. Said prayer of the Plaintiff was rejected by order dated 9th December 2016 of the Trial Court. This order dated 9th December 2016 was never challenged by the Plaintiff before the higher Court. Subsequently, around eight years after, a petition dated 11th September 2024 styled under Rule 10 of Order 1, CPC was filed by the Plaintiff to implead Defendant Nos. 2, 3, 4 and 7 as parties in the suit. Said prayer of the Plaintiff is again rejected vide impugned order dated 5th April 2025. C.M.P. No.1229 of 2025 Page 2 of 7 Signature Not Verified Digitally Signed Signed by: SANGRAM DAS Reason: Authentication Location: High Court of Orissa, Cuttack Date: 01-Sep-2025 18:17:42 4. It is submitted by Mr. Dash, learned counsel for the Petitioner that a suit for partition cannot proceed leaving a co-sharer or co- sharers and therefore presence of Defendant Nos. 2, 3, 4 and 7 are very much necessary in the suit. It is submitted that since the substantial right of the Plaintiff is going to be affected in absence of Defendant Nos. 2, 3, 4 and 7, the Procedural formalities should not stand on the way of the Plaintiff to get substantial justice. It is thus submitted by him that irrespective of the nomenclature of the petition filed by the Plaintiff, he may be allowed to array Defendant Nos. 2, 3, 4 and 7 in the suit. 5. Mr. Rao, learned Senior Counsel for the Opposite Parties on the other hand submits that the Plaintiff was sitting over the matter for quite long period without taking appropriate steps. Therefore, the learned Trial Court has rightly rejected his prayer and the Plaintiff has to face the consequence of his own inaction. It is further submitted that the Plaintiff is not interested for substantial justice but only interested to linger the matter which is seen from his conduct. 6. On the backdrop of such rival submissions, it is found admitted that the suit is for partition in respect of the joint family property of the parties. It is true that Defendant Nos. 2, 3, 4 and 7 C.M.P. No.1229 of 2025 Page 3 of 7 Signature Not Verified Digitally Signed Signed by: SANGRAM DAS Reason: Authentication Location: High Court of Orissa, Cuttack Date: 01-Sep-2025 18:17:42 could not be served with notice properly due to the failure on the part of the Plaintiff for providing their addresses and the Court without getting any other option dismissed the suit against said Defendants. Such order of the Trial Court being sought to be recalled vide petition dated 2nd August 2016, the prayer of the Plaintiff was rejected by order dated 9th December 2016. This order dated 9th December 2016 of the Trial Court is never challenged before any higher Court and it has attained finality as on date. Around eight years thereafter, the Plaintiff by circumventing the procedure to nullify said order dated 9th December 2016 of the Trial Court, had filed the petition under Order 1 Rule 10 of CPC. This is nothing but an attempt on the part of the Plaintiff to nullify the order of dismissal of the suit dated 4th March 2016 against Defendants No. 2, 3, 4 and 7. 7. So far as the maintainability of such petition under Order 1 Rule 10 is concerned, when the parties were already on record numbered as Defendant Nos. 2, 3, 4 and 7, against whom the suit has already been dismissed, the prayer to add them further by taking recourse under Order 1 Rule 10 CPC is certainly unsustainable and impermissible. This scope and object of the Order 1 Rule 10 is C.M.P. No.1229 of 2025 Page 4 of 7 Signature Not Verified Digitally Signed Signed by: SANGRAM DAS Reason: Authentication Location: High Court of Orissa, Cuttack Date: 01-Sep-2025 18:17:42 though for addition of necessary parties in the suit but that cannot be used in a circumvented way to re-add the existing parties in the suit. It is seen that such attempt on the part of the Plaintiff to add Defendant Nos. 2, 3, 4 and 7 in the guise of the provisions under Order 1 Rule 10 is not permissible. 8. At this stage Mr. Dash, learned counsel for the Petitioner submits that the Plaintiff has admittedly committed mistake by not challenging the order of the Trial Court dated 9th December 2016 in higher forum and in order to get the substantial justice there is no other way left for the Plaintiff without adding Defendant Nos. 2, 3, 4 and 7 in the fray. He further submits that the procedural defect should not stand on the way of the party to get substantial justice. 9. In United Bank of India vs. Naresh Kumar & Ors., (1996) 6 SCC 660 it is observed:- “Procedural defects which do not go to the root of the matter should not be permitted to defeat a just cause. There is sufficient power in the courts, under the Code of Civil Procedure, to ensure that injustice is not done to any party who has a just case. As far as possible a substantive right should not be allowed to be defeated on C.M.P. No.1229 of 2025 Page 5 of 7 Signature Not Verified Digitally Signed Signed by: SANGRAM DAS Reason: Authentication Location: High Court of Orissa, Cuttack Date: 01-Sep-2025 18:17:42 account of a procedural irregularity which is curable.” 10. It is true that the rules of procedure are meant to advance the cause of justice. In Jai Jai Ram Manohar Lal vs. National Building Material Supply, Gurgaon, (1969) 1 SCC 869, It has been stated by Hon’ble Supreme Court that, the rules of procedure are intended to be handmaid to be administration of justice and a party cannot be refused just relief merely because of some mistake, negligence, inadvertence or even infraction of the rules of procedure. 11. In the case at hand, looking at the nature of the suit which is with prayer for partition among the co-sharers, the substantial right of the Plaintiff cannot be effectuated in absence of Defendants No. 2, 3, 4 and 7. Therefore, keeping in view the prayer of the Plaintiff and the right for substantial justice involved in the suit, while this Court is not inclined to interfere with the impugned order dated 5th April 2025, grants liberty to the Plaintiff to challenge earlier order of the Trial Court dated 9th December 2016 in appropriate forum.
Decision
12. Accordingly, the CMP is disposed of without interfering with the impugned order dated 5th April 2025. At the same time, the C.M.P. No.1229 of 2025 Page 6 of 7 Signature Not Verified Digitally Signed Signed by: SANGRAM DAS Reason: Authentication Location: High Court of Orissa, Cuttack Date: 01-Sep-2025 18:17:42 plaintiff- Petitioner is granted liberty to challenge order dated 9th December 2016 of the learned Trial Court in appropriate forum. (B.P. Routray) Judge S.Das/Sr.Steno C.M.P. No.1229 of 2025 Page 7 of 7