The High Court
Case Details
Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 19-Oct-2023 17:43:09 IN THE HIGH COURT OF ORISSA AT CUTTACK CMP No. 884 OF 2023 M/s. Mars Promoters and Developers Private Limited, Cuttack …. Petitioner Mr. Nagen Kumar Barick, Advocate Nibedita Verma and others …. Opp. Parties -versus- CORAM: JUSTICE K.R. MOHAPATRA Order No.
Decision
ORDER 17.10.2023 2. 1. This matter is taken up through hybrid mode. 2. Order dated 26th April, 2022 (Annexure-8) passed by learned Senior Civil Judge, 1st Court, Cuttack in C.S. No. 662 of 2017 is under challenge in this CMP, whereby an application filed by Defendant Nos.3 and 4 to implead the Petitioner- Company as a party to the suit, has been rejected. 3. Mr. Barick, learned counsel for the Petitioner submits that the suit has been filed by Opposite Party No.1 for specific performance of contract executed by the Plaintiff and Defendant Nos.3 and 4 with Defendant Nos.1 on 26th March, 2014 for a total consideration amount of Rs.55,52,500/-. It is submitted that after payment of Rs.10 Lakh to Defendant No.1 through his son Defendant No.2 and before the stipulated period of one year of agreement, the Plaintiff and Defendant Nos.3 and 4 expressed their inability to pay the rest consideration amount and proposed Defendant No.1 that they have a company in the name and style of M/s. Mars Promoters and Developers Private Limited, Cuttack (Petitioner) and they being the Directors, decided to Page 1 of 6 Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 19-Oct-2023 17:43:09 // 2 // purchase the schedule land in the name of the company, in which Defendant Nos.1 and 2 had given their consent. Thereafter the balance amount of Rs.45,52,500/- was paid to the Defendant No.1 through his son Defendant No.2 from the account of the company and a supplementary agreement was also executed between the parties. Subsequently, the Plaintiff was terminated from the post of the Director of the said company on the allegation of mismanagement and misappropriation of the funds of the company, which was approved by the Registrar of the Companies. Although a petition to implead the Petitioner-Company as a party to the suit has already been dismissed earlier due to want of documents in support of payment of money from company’s account, but by filing documents in support of their case, the present application was filed by the Defendant Nos.3 and 4 to implead the present Petitioner as Defendant to the suit. 4. Mr. Barick, learned counsel for the Petitioner relied upon the case of Kamlesh Gupta –v- Mangat Rai and another, reported in (2020) 17 SCC 132, wherein it is held that ordinarily an impleadment petition needs to be filed before commencement of the trial. When a party sought to be impleaded is in possession of the suit property, it may be impleaded as a party to avoid difficulty in executing the decree, if any, passed in the suit. 5. He further relied upon the case of Gopal Krushna Badu Mohapatra and others –v- Girish Chandra Nayak and others, reported in 1999 (I) OLR 582, wherein this Court relied upon the cases of Kanhu Gauda –v- D. Kodandi Dora, reported in 60 (1985) CLT 453 and Udit Narain Singh Malpaharia –v- Page 2 of 6 Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 19-Oct-2023 17:43:09 // 3 // Additional Member, Board of Revenue, Bihar, reported in AIR 1963 SC 786, in which it is held as under: “To answer the question raised it would be convenient at the outset to ascertain who are necessary or proper parties in a proceeding. The law on the subject is well settled, it is enough if we state the principle. A necessary party is one without whom no order can be made effectively, a proper party is one in whose absence an effective order can be made but whose presence is necessary for a complete and final decision on the question involved in the proceeding.” Accordingly, this Court concluded as under: “The discretion of the Court in directing impletion of a party should be exercised in a reasonable manner so as not to cause inconvenience or embarrassment. Before directing a party to be impleaded, a Court has to be prima facie satisfied the fides of about plausibility of his claims and the genuineness of his interest in the litigation.” the applicant, the bona 6. Mr. Barick, learned counsel for the Petitioner also relied upon the case of Vijay Pratap and others –v- Sambhu Saran Sinha and others, reported in (1996)10 SCC 53, wherein similar view has been taken. 7. Learned trial Court while adjudicating the matter failed to appreciate that the Petitioner-Company is a necessary party to the suit, because in its absence, no effective decree of specific performance of contract can be passed. Further the Petitioner will be seriously prejudiced, if it is not impleaded as a party to the suit, as it has contributed a substantial amount, i.e., Rs.45,52,500/- towards balance consideration amount of agreement in question. He, therefore, prays for setting aside the Page 3 of 6 Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 19-Oct-2023 17:43:09 // 4 // impugned order under Annexure-8 and to direct the Petitioner to be impleaded as Defendant No.5 to the suit. 8. Heard learned counsel for the Petitioner and perused the petition (Annexure-7) filed under Order 1 Rule 10 (2) CPC filed by Defendant Nos.3 and 4 to implead the present Petitioner as a party to the suit. 9. The present Petitioner had never approached learned trial Court to be impleaded as a party. Defendant Nos. 3 and 4 filed the application for impleadment of the Petitioner as a party to the suit. But, they do not challenge the order under Annexure-8, impugned in this CMP. The case law in Kamlesh Gupta (supra) has no application to the case at hand, as there is no whisper in the petition under Annexure-7 to the effect that possession of the property was handed over to the Petitioner-Company by Defendant Nos.1 and 2. 10. The Plaintiff-Opposite Party No.1 has filed the suit for specific performance of contract on 26th March, 2014, in which the Petitioner-Company is not a party. As observed by learned trial Court, there is no averment with regard to the present Petitioner-Company in the agreement dated 26th March, 2014, which is the subject matter of dispute in the suit. Thus, the Petitioner-Company is not a necessary party to the suit, as alleged. 11. It is submitted by Mr. Barick, learned counsel for the Petitioner that a supplementary agreement at Annexure-6 was executed between the Petitioner-Company and Defendant Nos.1 and 2 for specific performance of contract. The said supplementary agreement is not in question in the suit. As such, Page 4 of 6 Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 19-Oct-2023 17:43:09 // 5 // presence of the Petitioner-Company is not required for complete adjudication of the issue involved in the suit. Thus, looking at the grievance of the Petitioner from any angle, this Court finds that learned trial Court has committed no error in passing the impugned order. 12. It is submitted by learned counsel for the Petitioner that no written objection was filed by the Plaintiff or any other Defendants to the petition under Order 1 Rule 10 (2) CPC. But, it is specifically observed by learned trial Court that without filing any written objection, the Plaintiff-Opposite Party No.1 objected to the prayer for impleadment of the present Petitioner as a party to the suit. 13. The matter was listed on 31st August, 2023, on which date Mr. Barick, learned counsel for the Petitioner sought for an adjournment to examine the applicability of the ratio in the case of Sudhamayee Pattnaik and others –v- Bibhu Prasad Sahoo and others, reported in 2022 SCC Online SC 1234. 14. Mr. Barick, learned counsel for the Petitioner submits that the ratio decided in the said case is not at all applicable to the case at hand, as the facts involved in the present case is completely different from one in the case of Sudhamayee Pattnaik (supra). 15. In the case of Sudhamayee Pattnaik and others (supra), the Hon’ble Supreme Court at Paragraph-11 has 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 injunction and is recovery of possession. As per the settled position of law, the plaintiffs are the dominus litis. Unless the court suo motu directs to join any other person not for declaration, permanent Page 5 of 6 Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 19-Oct-2023 17:43:09 // 6 // 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.” 16. Thus, from the ratio decidendi it is crystal clear that the Plaintiff being the dominus litis in the suit should not be compelled to litigate with a person against whom he does not claim any relief save and except in a case where the Court suo motu directs to implead party for an effective decree or for proper adjudication of the suit. Of course, the non-impleadment of a party is at the risk of the Plaintiff. 17. In the instant case, the Plaintiff-Opposite Party No.1 objects to the prayer of Defendant Nos.3 and 4 to implead the present Petitioner as a party to the suit. Defendant Nos.3 and 4 against whom the impugned order has been passed, have not filed the present CMP. Thus the Petitioner, who had not made any prayer to be impleaded as a party to the suit, has no locus standi to file the CMP. Thus, the case law relied upon by the Petitioner-Company are of no assistance to it. 18. As such, the CMP merits no consideration and is, accordingly, dismissed. Urgent certified copy of this order be granted on proper application. ms (K.R. Mohapatra) Judge Page 6 of 6