The High Court
Case Details
Signature Not Verified Digitally Signed Signed by: ROJALIN NAYAK Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 15-Nov-2023 10:57:56 Order No. 02. IN THE HIGH COURT OF ORISSA AT CUTTACK CMP NO.1140 OF 2023 Suresh Dev Kumbhar …. Petitioner Mrs. Sumitra Mohanty, Advocate -versus- The Dayanda Angla Vedic College Trust and Management Society, New Delhi and another …. Opp. Parties CORAM:
Decision
JUSTICE K.R. MOHAPATRA ORDER 14.11.2023 1. 2. This matter is taken up through hybrid mode. Order dated 5th April, 2023 (Annexure-1) passed by learned Civil Judge (Senior Division), Titilagarh in CS No.100 of 2021 is under challenge in this CMP, whereby an application filed by the Petitioner under Order I Rule 10(2) CPC, has been rejected. 3. Mrs. Mohanty, learned counsel for the Petitioner submits that the suit has been filed by the Plaintiff-Opposite Party No.1 under Section 6 of the Specific Relief Act, 1963 (for brevity ‘the Act’) for recovery of possession from the Opposite Party No.2. However, the Opposite Party No.2 did not file any written statement in the suit, as he had sold the suit property to the Petitioner before filing of the suit by a registered sale deed and delivered possession thereof. As such, the Petitioner is in possession over the suit property. When the Petitioner came to know about the pendency of the suit, he filed an application to be impleaded as a party which has been rejected vide order under Annexure-1. Page 1 of 4 Signature Not Verified Digitally Signed Signed by: ROJALIN NAYAK Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 15-Nov-2023 10:57:56 // 2 // 4. Mrs. Mohanty, learned counsel for the Petitioner submits that even if a decree for recovery of possession is passed against the Defendant-Opposite Party No.2, it cannot be executed as the Petitioner is in possession over the suit property by virtue of the Registered Sale Deed executed in his favour. It is also submitted that in order to avoid the multiplicity of litigation, the Petitioner should be impleaded as a party. In support of her case, Mrs. Mohanty, learned counsel for the Petitioner relied upon the case of Kamlesh Gupta vrs. Mangat Rai and another, reported in Civil Appeal No.7556 of 2019 in which Hon’ble Supreme Court held as under: “9. So far as the possession of the suit shop is concerned, as per the first defendant’s own admission, possession was handed over to the second defendant by the first defendant. We fail to understand how the first defendant, as the mortgagee of the suit shop, handed over its possession to a third party without even informing the mortgagor, i.e., the plaintiff. Furthermore, it is unclear in what capacity the second defendant obtained possession of the suit shop, as no lease deed or any such document has been produced before us. In any case, the fact that Pawan Kumar is now in possession, though unauthorised, has not been disputed by any of the parties. In the present scenario, therefore, even if a decree is granted in favour of the plaintiff, Pawan Kumar may object to the execution of the said decree on the ground that he was not made a party to the suit despite being in possession of the suit shop. 10. We are of the opinion that by virtue of actual possession being enjoyed by Pawan Kumar, he is a necessary party to the present suit. Even otherwise, he is a proper party for the reasons elucidated above.” 5. She, therefore, submits that the Petitioner is a necessary party to the suit and should have been impleaded as such. It is her submission that although learned trial Court passed a lengthy order under Annexure-1, but has not take into consideration this material aspect. Hence, this CMP has been filed. Page 2 of 4 Signature Not Verified Digitally Signed Signed by: ROJALIN NAYAK Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 15-Nov-2023 10:57:56 // 3 // 6. Considering the submission made by learned counsel for the Petitioner and on perusal of the record, it appears that the Plaintiff has filed the application under Section 6 of the Act for recovery of possession from the Defendant-Opposite Party No.2 claiming that it has been dispossessed by the Defendant. No allegation is made against the present Petitioner in the plaint. 7. Further, in objection to the petition under Order I Rule 10(2) CPC, it has been specifically pleaded that neither the intervenor (Petitioner herein) is in possession over the suit land nor the Plaintiff was forcibly dispossessed by him. On the other hand, Defendant-Opposite Party No.2 entered into the suit property forcibly, which is the play ground of the Plaintiff-College and taking advantage of outbreak of Covid-19, the Defendant has raised a permanent structure over it. Since the Petitioner does not claim any relief against the Petitioner, he cannot be compelled to implead the present Petitioner as a party to the suit. In the case of Sudhamayee Pattnaik and others vrs. Bibhu Prasad Sahoo and others, reported in 2022 SCC Online SC 1234, Hon’ble Supreme Court 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 is for declaration, permanent 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.” Page 3 of 4 Signature Not Verified Digitally Signed Signed by: ROJALIN NAYAK Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 15-Nov-2023 10:57:56 // 4 // 8. Unless directed suo motu, the Plaintiff should not be compelled to implead a party with whom he does not want to litigate. Of course, non-impletion of the party is at the risk of the Plaintiff. Further, the Plaintiff seriously disputes the possession of the Petitioner over the suit property. Hence, the case law in Kamlesh Gupta (supra) relied upon by the Petitioner is of no assistance to him. 9. Mrs. Mohanty, learned counsel for the petitioner, however, made an attempt to distinguish the ratio in Sudhamayee Pattnaik (supra) stating that in the said case, the party sought to be impleaded was a lis pendens purchaser and in the instance case, Petitioner had purchased the property before filing of the suit. 10. Be that as it may, the ratio decided in Sudhamayee Pattnaik (supra), is not confined a lis pendens purchaser. As such, the submission of Mrs. Mohanty, learned counsel for the Petitioner is not acceptable. 11. On perusal of the impugned order, it appears that learned trial Court had taken the pain to discuss the matter in detail and passed a reasoned order which warrants no interference. 12. Accordingly, the CMP, being devoid of any merit, stands dismissed. Urgent certified copy of this order be granted on proper application. Rojalin Judge (K.R. Mohapatra) Page 4 of 4