The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CMP No. 946 OF 2022 Siman Hansdah and another …. Petitioners Mr. Manas Ranjan Dhal, Advocate -versus- Thakura Majhi and others Opp. Parties Ms. Rashmi Rekha Pradhan, Advocate (For Opp. Party No.1) …. CORAM: JUSTICE K.R. MOHAPATRA Order No.
Decision
ORDER 06.02.2023 12. 1. This matter is taken up through hybrid mode. 2. Order dated 20th August, 2022 (Annexure-6) passed by learned Second Additional Senior Civil Judge, Baripada in C.S. No.173 of 2019 is under challenge in this CMP, whereby an application filed by the Petitioner under Order 1 Rule 10 C.P.C., has been rejected. 3. Mr. Dhal, learned counsel for the Petitioners submits that the civil suit has been filed for demarcation and permanent injunction without seeking for any relief of declaration of right, title and interest over the suit property. The land in question has been gifted in favour of Betna G.P. in the year, 2006 by recorded tenant to hold Damdarpur weekly hat. The Plaintiff has no right, title and interest over the suit property. Since the land has already been gifted by the true owner for the purpose of running a weekly hat (market), the Petitioners have interest in the suit property. Hence, an application was filed under Order 1 Rule 10 C.P.C. to implead the Gram Panchayat of which Petitioner No.2 is the elected Sarpanch. The said application was rejected on an Page 1 of 4 // 2 // erroneous finding that the Plaintiff is the architecture of the suit and that the Plaintiff does not claim any relief against the Betna G.P.. 4. Mr. Dhal, learned counsel for the Petitioners relies upon the decision in the case of Bhagirathi Mahalik –v- Markanda Barik and others, reported in 2014 (I) OLR 857, wherein this Court has held as under: the Court at any stage of “9. The object of Order 1, Rule 10, CPC is to discourage contests on technical pleas, and to save honest and bona fide claimants from being non- suited. The power to strike out or add parties can be exercised by the proceedings. Under this Rule, a person may be added as a party to a suit in the following two cases: (1) when he ought to have been joined as plaintiff or defendant, and is not joined so; or (2) when, without his presence, the questions in the suit cannot be completely decided. 10. The power of a Court to add a party to a proceeding cannot depend solely on the question whether he has interest in the suit property: The question is whether the right of a person may be affected if he is not added as a party. Such right, however, will include necessarily an enforceable legal right.” 5. The principle laid down in Bhagirathi Mahalik (supra) has not been followed by learned trial Court while adjudicating the matter. Hence, he prays for setting aside the impugned order under Annexure-6 and direct learned trial Court to implead the Petitioners as a Defendants to the suit. 6. Ms. Pradhan, learned counsel for the Plaintiff-Opposite Party No.1 vehemently objects to the submission of learned counsel for the Petitioners. It is her submission that the Plaintiff Page 2 of 4 // 3 // is the dominus litis. Since the Plaintiff does not claim any relief against the Betna G.P., neither Betna G.P. nor Petitioner No.2, who claims himself to be the Sarpanch of the said are necessary parties to the suit. The suit is for demarcation and for permanent injunction. Thus, question of right, title and interest, if any, of the Petitioners are not going to be decided in the suit. If the application under Order 1 Rule 10 (2) C.P.C. is allowed, it will expand the scope of the suit, which should be avoided. If the Petitioners have any enforceable right, it may bring a fresh suit for the same. But, it cannot claim for being impleaded as party to the present suit, in which no relief is claimed against them. It is her submission that the Plaintiff has already been examined in the suit. Thus, at this stage, if the application under Order 1 Rule 10 C.P.C. is impleaded, it will amount to a de novo trial. Hence, she prays for dismissal of the CMP. 7. Considering the rival contentions of the parties and the case law cited, this Court is of the considered opinion that principal laid down in Bhagirathi Mahalik (supra) still holds the field. 8. In the instant case, the Petitioners claim that the land was gifted in favour of Betna G.P. by the true owner. They also claim that Petitioner No.2 is the elected Sarpanch of the said G.P.. It is their case that the land has been gifted in favour of the G.P. for running Damdarpur weekly hat. The aforesaid allegations are not within the scope of the suit to be adjudicated. Further in the case of Sudhamayee Pattnaik and others –v- Bibhu Prasad Sahoo and others, reported in 2022 SCC Online SC 1234, wherein the Hon’ble Supreme Court has made it clear that the Plaintiff cannot Page 3 of 4 // 4 // be compelled to litigate with a person, against whom, he does not claim any relief. It is, of course, at the risk of the Plaintiff not to implead the intervener as party to the suit. The suit is filed for demarcation and permanent injunction. No issue with regard to right, title and interest of the parties can be decided in the suit. Further it appears that the Petitioners by virtue of an application under Order 1 Rule 10(2) C.P.C. seek to introduce a completely new case for adjudication, which is beyond the scope of the suit. In that view of the matter, learned trial Court has committed no error in dismissing the application under Order 1 Rule 10(2) C.P.C. 9. Accordingly, the CMP being devoid of any merit stands dismissed. Urgent certified copy of this order be granted on proper application. ms (K.R. Mohapatra) Judge Page 4 of 4