The High Court · 2025
Case Details
Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Reason: Authentication Location: High Court of Orissa, Cuttack Date: 17-Nov-2025 19:02:52 IN THE HIGH COURT OF ORISSA AT CUTTACK C.M.P. No.1446 of 2025 (In the matter of an application under Article 227 of the Constitution of India) Labanyabati Behera and another …. Petitioners -versus- Lingaraj Senapati and others …. Opposite Parties Advocate(s) appeared in this case:- For Petitioners : Mr. M.K. Dash, Advocate For Opposite Parties : Mr. S.P. Satapathy, Advocate For O.P. Nos.1 to 3 CORAM: JUSTICE B.P. ROUTRAY JUDGMENT 14th November 2025 B.P. Routray, J. 1. Heard Mr. M.K. Dash, learned Advocate for the Petitioners and Mr. S.P. Satapathy, learned Advocate for Opposite Parties 1 to 3. 2. Present C.M.P. is directed against the order dated 01.09.2025 of the learned Civil Judge (Jr. Divn.), Bhubaneswar passed in C.S. No.1258 of 2023, wherein the prayer of the Petitioners under Order 1 Rule 10, C.P.C. has been rejected. C.M.P. No.1446 of 2025 Page 1 of 11
Legal Reasoning
Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Reason: Authentication Location: High Court of Orissa, Cuttack Date: 17-Nov-2025 19:02:52 3. Present Opposite Parties 1 to 3 being the Plaintiffs filed the suit against present Opposite Parties 4 to 6 praying for permanent injunction simplicitor. For better appreciation the prayer made in the plaint is re-produced below:- “(a) Pass a decree of permanent injunction permanently injuncting the Defendants, their agents, relatives or any other person representing on their behalf from entering in to the suit land and from creating any disturbance to the peaceful possession of the Plaintiffs. b. Cost of the suit be decreed c. And /or any other relief(s) may be passed as deemed fit and proper by this Hon’ble court in the interest of justice.” 4. The Defendants though appeared, but did not file their written statement as submitted by learned counsel for the Plaintiffs. The Plaintiffs adduced their evidence and after closure of their evidence, the Defendants also did not adduce any evidence and the suit was posted for argument. At the stage of the argument, present Petitioners filed a petition under Order 1 Rule 10, C.P.C. praying them to be impleaded as Defendants in the suit on the ground that they are the mother and sister of the Defendants and also in possession of the suit land. The said prayer of the present Petitioners has been rejected by the learned trial court on the ground that the Plaintiffs do not seek for any C.M.P. No.1446 of 2025 Page 2 of 11 Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Reason: Authentication Location: High Court of Orissa, Cuttack Date: 17-Nov-2025 19:02:52 relief against these Petitioners and in a suit for permanent injunction simplicitor where declaration of right, title is not claimed, present Petitioners are not necessary parties. 5. It is settled that the Plaintiff is the masters of the suit and he is the dominus litis. The provisions under Order 1 Rule 10 C.P.C. authorizes the court to add any party to the suit at any stage of the proceeding whose presence is found necessary in order to enable the court to effectively and completely adjudicate the issues involved. 6. The principles for impleading a party to the suit has been well discussed in Mumbai International Airport (P) Ltd. v. Regency Convention Centre & Hotels (P) Ltd., (2010) 7 SCC 417. It has been held that:- “13. The general rule in regard to impleadment of parties is that the plaintiff in a suit, being dominus litis, may choose the persons against whom he wishes to litigate and cannot be compelled to sue a person against whom he does not seek any relief. Consequently, a person who is not a party has no right to be impleaded against the wishes of the plaintiff. But this general rule is subject to the provisions of Order 1 Rule 10(2) of the Code of Civil Procedure (“the Code”, for short), which provides for impleadment of proper or necessary parties. The said sub-rule is extracted below: C.M.P. No.1446 of 2025 Page 3 of 11 Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Reason: Authentication Location: High Court of Orissa, Cuttack Date: 17-Nov-2025 19:02:52 “10. (2) Court may strike out or add parties.—The court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the court may be necessary in order to enable the court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added.” 14. The said provision makes it clear that a court may, at any stage of the proceedings (including suits for specific performance), either upon or even without any application, and on such terms as may appear to it to be just, direct that any of the following persons may be added as a party: (a) any person who ought to have been joined as plaintiff or defendant, but not added; or (b) any person whose presence before the court may be necessary in order to enable the court to effectively and completely adjudicate upon and settle the questions involved in the suit. In short, the court is given the discretion to add as a party, any person who is found to be a necessary party or proper party. 15. A “necessary party” is a person who ought to have been joined as a party and in whose absence no effective decree could be passed at all by the court. If a “necessary party” is not impleaded, the suit itself is liable to be dismissed. A “proper party” is a party who, though not a necessary party, is a person whose presence would enable the court to completely, effectively and adequately adjudicate upon all matters in dispute in the suit, C.M.P. No.1446 of 2025 Page 4 of 11 Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Reason: Authentication Location: High Court of Orissa, Cuttack Date: 17-Nov-2025 19:02:52 though he need not be a person in favour of or against whom the decree is to be made. If a person is not found to be a proper or necessary party, the court has no jurisdiction to implead him, against the wishes of the plaintiff. The fact that a person is likely to secure a right/interest in a suit property, after the suit is decided against the plaintiff, will not make such person a necessary party or a proper party to the suit for specific performance. xx xx xx 18. In Kasturi [(2005) 6 SCC 733] this Court reiterated the position that necessary parties and proper parties can alone seek to be impleaded as parties to a suit for specific performance. This Court held that necessary parties are those persons in whose absence no decree can be passed by the court or those persons against whom there is a right to some relief in respect of the controversy involved in the proceedings; and that proper parties are those whose presence before the court would be necessary in order to enable the court effectually and completely to adjudicate upon and settle all the questions involved in the suit although no relief in the suit was claimed against such person. xx xx xx 23. This Court in Ramji Dayawala & Sons (P) Ltd. v. Invest Import [(1981) 1 SCC 80] reiterated in SCC p. 96, para 20 the classic definition of “discretion” by Lord Mansfield in R. v. Wilkes [(1770) 4 Burr 2527 : 98 ER 327 : (1558-1774) All ER Rep 570] (ER p. 334) that “discretion” “when applied to a court of justice, means sound discretion guided by law. It must be governed by rule, not by humour: it must not be arbitrary, vague, and fanciful; but legal and regular.” C.M.P. No.1446 of 2025 Page 5 of 11 Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Reason: Authentication Location: High Court of Orissa, Cuttack Date: 17-Nov-2025 19:02:52 24. We may now give some illustrations regarding exercise of discretion under the said sub-rule. 24.1 If a plaintiff makes an application for impleading a person as a defendant on the ground that he is a necessary party, the court may implead him having regard to the provisions of Rules 9 and 10(2) of Order 1. If the claim against such a person is barred by limitation, it may refuse to add him as a party and even dismiss the suit for non-joinder of a necessary party. 24.2 If the owner of a tenanted property enters into an agreement for sale of such property without physical possession, in a suit for specific performance by the purchaser, the tenant would not be a necessary party. But if the suit for specific performance is filed with an additional prayer for delivery of physical possession from the tenant in possession, then the tenant will be a necessary party insofar as the prayer for actual possession. 24.3 If a person makes an application for being impleaded contending that he is a necessary party, and if the court finds that he is a necessary party, it can implead him. If the plaintiff opposes such impleadment, then instead of impleading such a party, who is found to be a necessary party, the court may proceed to dismiss the suit by holding that the applicant was a necessary party and in his absence the plaintiff was not entitled to any relief in the suit. 24.4 If an application is made by a plaintiff for impleading someone as a proper party, subject to limitation, bona fides, etc., the court will normally implead him, if he is found to be a proper party. On the other hand, if a non-party makes an application seeking impleadment as a proper party and the court finds him to be a proper party, the court may direct his C.M.P. No.1446 of 2025 Page 6 of 11 Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Reason: Authentication Location: High Court of Orissa, Cuttack Date: 17-Nov-2025 19:02:52 addition as a defendant; but if the court finds that his addition will alter the nature of the suit or introduce a new cause of action, it may dismiss the application even if he is found to be a proper party, if it does not want to widen the scope of the specific performance suit; or the court may direct such applicant to be impleaded as a proper party, either
Legal Reasoning
unconditionally or subject to terms. For example, if D claiming to be a co-owner of a suit property, enters into an agreement for sale of his share in favour of P representing that he is the co-owner with half-share, and P files a suit for specific performance of the said agreement of sale in respect of the undivided half-share, the court may permit the other co-owner who contends that D has only one-fourth share, to be impleaded as an additional defendant as a proper party, and may examine the issue whether the plaintiff is entitled to specific performance of the agreement in respect of half a share or only one-fourth share; alternatively the court may refuse to implead the other co-owner and leave open the question in regard to the extent of share of the defendant vendor to be decided in an independent proceeding by the other co-owner, or the plaintiff; alternatively the court may implead him but subject to the term that the dispute, if any, between the impleaded co-owner and the original defendant in regard to the extent of the share will not be the subject- matter of the suit for specific performance, and that it will decide in the suit only the issues relating to specific performance, that is, whether the defendant executed the agreement/contract and whether such contract should be specifically enforced. 25. In other words, the court has the discretion to either to allow or reject an application of a person claiming to be a proper party, depending upon the facts and circumstances and no person has a C.M.P. No.1446 of 2025 Page 7 of 11 Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Reason: Authentication Location: High Court of Orissa, Cuttack Date: 17-Nov-2025 19:02:52 right to insist that he should be impleaded as a party, merely because he is a proper party.” 7. In Pankajbhai Rameshbhai Zalavadiya v. Jethabhai Kalabhai Zalavadiya, (2017) 9 SCC 700, it is observed as follows:- “16. xxxx .. xx …. The provision under Order 1 Rule 10 CPC speaks about judicial discretion of the Court to strike out or add parties at any stage of the suit. It can strike out any party who is improperly joined, it can add anyone as a plaintiff or defendant if it finds that such person is a necessary or proper party. The Court under Order 1 Rule 10(2) of the Code will of course act according to reason and fair play and not according to whims and caprice.” 8. In the case at hand, present Petitioners are admittedly the mother and sister of the Defendants and according to them they are claiming possession over the suit land along with the Defendnats. It is submitted by Mr. Dash, learned counsel for the Petitioners that present Petitioners being the mother and sister of the Defendants are residing in the same house and also claiming possession over the suit land through the Defendants. It is further submitted that since in the prayer portion, the Plaintiffs have prayed for permanent injunction against the Defendants and any other person through whom the Defendants claim possession, presence of Petitioners are necessary for adjudication of the dispute. C.M.P. No.1446 of 2025 Page 8 of 11 Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Reason: Authentication Location: High Court of Orissa, Cuttack Date: 17-Nov-2025 19:02:52 9. As per the submission of the Plaintiffs, present Defendants have filed another suit in C.S. No.788 of 2025 before the competent court claiming adverse possession against the Plaintiffs in respect of the suit land where present Petitioners are not parties to claim possession along with the Defendants over the suit land. Therefore, what is now contended by them that they are in possession of the suit land is found mis-leading. 10. The Petitioners have not been arrayed in the suit despite their claim of possession over the suit land by the Plaintiffs at their risk. According to the Plaintiffs, the Defendants are the only persons, who are disturbing the possession of the Plaintiffs over the suit land. At the same time, as per the claim of the present Petitioners, who want to be impleaded in the suit as Defendants being the mother and sister of the Defendants, are having their possession over the suit land through the Defendants. In other words, present Petitioners claim possession over the suit land through present Defendants who are already on record. As per the prayer of the Plaintiffs, it is the Defendants, who were disturbing their possession and therefore, the Plaintiffs seek relief of permanent injunction against the present Defendants and also through their agents and any other persons. At the same time, present C.M.P. No.1446 of 2025 Page 9 of 11 Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Reason: Authentication Location: High Court of Orissa, Cuttack Date: 17-Nov-2025 19:02:52 Petitioners, who do not claim direct possession over the suit land by them but through the Defendants as per their claim, and therefore they need not be required to present before the court for adjudication of the issues. A necessary party, as explained, is in whose absence no effective decree could be passed at all by the court and a proper party is whose presence would enable the court to completely, effectively and adequately adjudicate upon all matters in dispute in the suit. 11. In the given facts of the present case, when the present Defendants claim possession in C.S. No.788 of 2025 over the suit property adverse to the interest of present Plaintiffs without adding present Petitioners, where present Petitioners do not choose to be arrayed as parties despite their claim of residing in same house along with Defendants having it within their knowledge of claim raised by present Defendants in C.S. No.788 of 2025 claiming adverse possession against present Plaintiffs, it is clear from such circumstances that the prayer of present Petitioners under Order 1 Rule 10 C.P.C. is short of bona fide approach and as a part of dilutory tactics. Therefore, their presence in the suit is not considered as necessary to determine the issues effectively who are found neither necessary parties nor proper parties. Moreover, the Plaintiffs being the C.M.P. No.1446 of 2025 Page 10 of 11 Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Reason: Authentication Location: High Court of Orissa, Cuttack Date: 17-Nov-2025 19:02:52 master of the suit if do not chose to add the present Petitioners as Defendants to claim any relief against them, no need is there to array present Petitioners in the suit against the wish of plaintiffs particularly when the suit has reached the stage of argument. Thus, no merit is seen in the contention of the Petitioners to be added as parties in the suit. 12.
Decision
In the result, the C.M.P. is dismissed and the impugned order of the trial court is confirmed. (B.P. Routray) Judge B.K. Barik/Secretary C.M.P. No.1446 of 2025 Page 11 of 11