The High Court
Case Details
Signature Not Verified Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 18-Jan-2024 18:48:55 IN THE HIGH COURT OF ORISSA AT CUTTACK CMP No. 1448 of 2023 Ansuman Mahanti Petitioner Mr. Swarup Kumr Patnaik, Advocate .... -versus- Puspalata Dei @ Mahanti and others …. Opp. Parties CORAM: JUSTICE K.R. MOHAPATRA Order No.
Decision
ORDER 17.01.2024 2. 1. This matter is taken up through hybrid mode. 2. Petitioner in this CMP seeks to assail the order dated 12th October, 2023 (Annexure-6) passed by learned 1st Additional Senior Civil Judge, Cuttack in CS No.7186 of 2014, whereby an application filed by Defendant No.1/Petitioner to direct the Plaintiff/Opposite Party No.1 to implead other co-sharers as parties to the suit and also to issue notice to them, has been rejected. 3. Mr. Patnaik, learned counsel for the Petitioner submits that CS No.7186 of 2014 has been filed for partition. The Petitioner/Defendant No.1 on appearance filed his written statement along with counter-claim. In the counter-claim, Defendant No.1 has stated that the Plaintiff intentionally left out certain joint family property for partition and he has also named the co-sharers who are left out by the Plaintiff. The counter-claim has been accepted vide order dated 23rd June, 2023. As such, the Page 1 of 4 Signature Not Verified Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 18-Jan-2024 18:48:55 // 2 // properties included in the counter-claim are subject matter of dispute in the suit itself. It is submitted that the counter-claim is to be decided like an independent suit. When other joint family properties described in the counter-claim has been accepted for adjudication, co-sharers left out by the Plaintiff are required to be made parties to the suit. In their absence, no effective partition of the property can be made. Learned trial Court also has the discretion to direct the Plaintiff to implead other co-sharers as parties by exercising its jurisdiction under Order I Rule 10 CPC. 3.1 In view of the above, the Defendant No.1/Petitioner filed an application to implead the co-sharers left out by the Plaintiff for partition of the suit property more fully described in the plaint and the counter-claim. It is his submission that the Plaintiff has already filed her written statement to the counter-claim stating that she has no idea about the property included in the counter- claim. Thus, it requires adjudication in the suit. In a suit for partition, the status of the parties is inter-changeable and thus the prayer of the Defendant No.1/Petitioner for just adjudication of the suit should have been accepted. Learned trial Court, without considering the same, rejected the petition vide order under Annexure-6 holding that the Plaintiff is the dominus litis and the final decision of the suit will be binding on the co-sharers. It is his submission that unless all the co-sharers are impleaded as parties to the suit, they will be seriously prejudiced, if shares are allotted without giving any opportunity to them. He, therefore, prays for setting aside the impugned order under Annexure-6 and implead the co-sharers more fully named in the counter-claim as Page 2 of 4 Signature Not Verified Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 18-Jan-2024 18:48:55 // 3 // parties to the suit and issue summons to them for their appearance and for filing of written statement. 4. Considering the submission of learned counsel for the Petitioner and on perusal of record, it appears that Defendant No.1 on his appearance filed written statement along with counter-claim asserting that the Plaintiff has left out certain properties and some co-sharers in the plaint. In the counter-claim, Defendant No.1 has also impleaded certain other persons as parties stating them to be the co-sharers as well as certain other properties. However, the counter-claim has already been accepted and admitted vide order dated 23rd June, 2023 passed by learned 1st Additional Senior Civil Judge, Cuttack. 4.1 Admission of a counter-claim does not by itself suggest that the Court has accepted the parties named in the counter- claim as co-sharers and properties described therein as joint family properties. Those are subject to adjudication. No doubt, a counter-claim has to be decided as an independent suit, but the same is subject to the restrictions under Order VIII Rule 6-A CPC. In a counter-claim, the Defendant can only claim relief against the Plaintiff. In the instant case, the Defendant No.1 filed an application to direct the Plaintiff to implead the persons named in the counter-claim as parties to the suit and issue summons to them. From the written statement to the counter- claim filed by the Plaintiff, it appears that the Plaintiff has raised objection with regard to maintainability of the counter-claim in respect of the properties included in it. The Plaintiff is the dominus litis and she cannot be compelled to litigate with a Page 3 of 4 Signature Not Verified Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 18-Jan-2024 18:48:55 // 4 // person against whom she does not claim any relief. Although status of parties in a partition suit is inter-changeable, but the rigors of the provision of the Code of Civil Procedure is applicable to the parties. In the instant case, since the Plaintiff does not wish to incorporate certain other properties in the plaint and to implead the persons styled as co-sharers as parties to the suit she cannot be compelled to do so. Of course, the same is at the risk of the Plaintiff. In the instant case, by filing counter- claim, Defendant No.1 wants to expand the scope of the suit, which is not permissible in law. 4.2 Mr. Patnaik, learned counsel in course of argument, states that in view of Order II Rule 2 CPC, the entire subject matter of dispute should be taken into consideration for adjudication. This submission of Mr. Patnaik, learned counsel though legally correct, but is always subject to appreciation of materials on record and law operating in the field. 5. In that view of the matter, this Court is of the considered opinion that learned trial Court has committed no error in rejecting the prayer of the Petitioner to implead the persons named in the counter-claim as parties to the suit and issue summons for their appearance. 6. Accordingly, the CMP being devoid of any merit stands dismissed. s.s.satapathy (K.R. Mohapatra) Judge Page 4 of 4