The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CMP No. 1007 OF 2022 Ramesh Chandra Sahoo and others Petitioners Mr. Hrudananda Mohapatra, Advocate …. -versus- Prakash Kumar Mangaraj and others …. Opp. Parties Mr. Mruganka Mauli Patnaik, Advocate (For Opp. Party No.1) CORAM: JUSTICE K.R. MOHAPATRA Order No.
Decision
ORDER 28.03.2023 7. 1. This matter is taken up through hybrid mode. 2. Order dated 21st September, 2022 (Annexure-5) passed in C.S. No.365 of 2018 is under challenge in this CMP, whereby learned Additional Senior Civil Judge, Puri allowed an application filed by Opposite Party No.1 under Order 1 Rule 10 C.P.C. 3. Mr. Mohapatra, learned counsel for the Petitioners submits that C.S. No.365 of 2018 has been filed by the Petitioners for declaration of right, title and interest as well as for confirmation of possession on the basis of a Registered Sale Deed dated 31st August, 2017. During pendency of the suit, the Opposite Party No.1 had filed an application under Order 1 Rule 10 C.P.C. stating that he has filed C.S. No.152 of 2018 for specific performance of contract on the basis of an agreement for sale dated 15th April, 2015. He also prayed inter alia for confirmation of possession and also for permanent injunction. The Plaintiffs are parties to the said suit. It is also contended in the said application that the property involved in C.S. No.365 of 2018 is also subject matter of dispute in C.S. No.152 of 2018 filed by the Page 1 of 4 // 2 // Opposite Party No.1. Learned trial Court holding that the Plaintiffs are parties to C.S. No.152 of 2018 filed by the Opposite Party No.1 and the Registered Sale Deed dated 31st August, 2017 is under challenge in the said suit, allowed the application under Order 1 Rule 10 C.P.C. observing that the Opposite Party No.1 has some interest in the suit property and allowing the application under Order 1 Rule 10 C.P.C. will not change the nature and character of the suit. 4. Mr. Mohapatra, learned counsel for the Petitioners relied upon the decision in the case of Sudhamayee Pattnaik and others –v- Bibhu Prasad Sahoo and others, reported in 2022 SCC Online SC 1234, wherein at Paragraph-11, it is held as under: for declaration, permanent “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 is injunction and recovery of possession. As per the settled position of law, the plaintiffs are the domius litis. Unless the court suo motu directs to join any other person not 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.” 5. He, therefore, submits that unless it is suo motu directed by the Court, the Plaintiffs should not be compelled to implead a party against which he does not want to contest. Non-impletion of a party is, of course, at the risk of the Plaintiff. In the instant case, it is submitted that learned trail Court has misconstrued the facts by holding that the Registered Sale Deed dated 31st August, Page 2 of 4 // 3 // 2017 is under challenge in C.S. No.152 of 2018. In fact, C.S. No.152 of 2018 is a suit for specific performance of contract, confirmation of possession and for permanent injunction. The document on the basis of which the suit for specific performance of contract was filed, is an unregistered document. He, therefore, prays for setting aside the impugned order under Annexure-5. 6. Mr. Patnaik, learned counsel for the Opposite Party No.1 vehemently objects to the same and contends that the property involved in C.S. No.152 of 2018 is also the subject matter of dispute in C.S. No.365 of 2018 filed by the Petitioners. The Petitioners are Defendant Nos.2 to 4 in the civil suit filed by Opposite Party No.1. He further submits that the ratio in Sudhamayee Pattnaik and others (supra) has no application to the case at hand as issue involved in the said case was whether a subsequent purchaser should be made a party to the suit. Thus, learned trial Court has committed no error in allowing the application impleading the Opposite Party No.1 as a party to the suit. 7. In course of hearing, a copy of the plaint in C.S. No.152 of 2018 is filed in Court for its perusal. It appears that the Registered Sale Deed dated 31st August, 2017 on the basis of which the Petitioners claim their right, title and interest is not under challenge in the suit filed by the Opposite Party No.1 (C.S. No.152 of 2018). Along with the other prayers, the Opposite Party No.1 has also prayed in the alternative for refund of the consideration amount. Thus, learned trial Court is not correct in observing that Registered Sale Deed dated 31st August, 2017 is under challenge in C.S. No.152 of 2018. Further consideration of C.S. No.365 of 2018 and C.S. No.152 of 2018 are quite different. In the case of Sudhamayee Pattnaik and others (supra), it has Page 3 of 4 // 4 // been categorically held by the Hon’ble Supreme Court that unless suo motu directed by the Court, the Plaintiff cannot be compelled to implead a person against whom he does not want to contest the case. It is, of course, at the risk of the Plaintiffs-Petitioners. Thus, in view of the discussion made above, this Court is of the considered opinion that learned trial Court has committed an error of law in allowing the petition under Order 1 Rule 10 C.P.C. 8. Accordingly, the order dated 21st September, 2022 under Annexure-5 passed by learned Additional Senior Civil Judge, Puri in C.S. No.365 of 2018 is set aside. 9. The CMP is accordingly disposed of. Urgent certified copy of this order be granted on proper application. ms (K.R. Mohapatra) Judge Page 4 of 4