Orissa High Court
Sesadeba Nayak vs Abhaya Kumar Karan And Others .... Opp. ... on 30 July, 2024
Author: K.R. Mohapatra
Bench: K.R. Mohapatra
Signature Not Verified
Digitally Signed
Signed by: ROJALIN NAYAK
Designation: JUNIOR STENOGRAPHER
Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 05-Aug-2024 16:58:03
IN THE HIGH COURT OF ORISSA AT CUTTACK
CMP NO.513 OF 2024
Sesadeba Nayak .... Petitioner
Mr. Sidharth Sahu, Advocate on behalf
of Mr. Nirod Kumar Sahu, Advocate
-versus-
Abhaya Kumar Karan and others .... Opp. Parties
CORAM:
JUSTICE K.R. MOHAPATRA
ORDER
Order No. 30.07.2024
02. 1. This matter is taken up through hybrid mode.
2. Order dated 12th March, 2024 (Annexure-6) passed in CS No. 06 of 2023 is under challenge in this CMP, whereby learned Gramanyayadhikari, Bramhagiri rejected a petition filed by the Petitioner under Order I Rule 10 CPC to be impleaded as party to the suit.
3. Mr. Sahu, leanrned counsel for the Petitioner submits that the suit has been filed by the Opposite Party Nos.1 to 11 for injunction simplicitor seeking a decree to restrain the Defendants- Opposite Party Nos.12 and 13 from entering upon the suit property and to cut any tree and change the nature and character of the suit property. During pendency of the suit, the Petitioner filed an application under Order I Rule 10 (2) CPC to be impleaded as a party to the suit claiming that he is the son of late. Lochan Nayak and is in possession over the suit property. The Plaintiffs, in connivance with the Defendants, have filed the suit without impleading the present Petitioner as a party. In a proceeding under Section 144 Cr.P.C., the possession of the Petitioner has been recorded. It is further averred in the petition that the Petitioner is a Page 1 of 5 Signature Not Verified Digitally Signed Signed by: ROJALIN NAYAK Designation: JUNIOR STENOGRAPHER Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 05-Aug-2024 16:58:03 necessary party to the suit and his presence is highly required for just adjudication of the suit. Objection was filed by the Plaintiffs- Opposite Party Nos.1 to 11 objecting to the impletion of Opposite Parties. Learned Gramanyayadhikari, holding that the Petitioner has no interest in the present suit and no relief has been sought for against him, rejected the petition. Hence, this CMP has been filed.
4. Mr. Sahu, learned counsel for the Petitioner further submits that the Petitioner may not be a necessary party to the suit, but his presence is necessary for effective adjudication of the suit. The nature of relief sought for being a decree for permanent injunction, learned trial Court may be required to delve into the question of title of the parties incidentally. In the event, any finding is recorded with regard to title over the suit property, the Petitioner will be prejudiced. It is his submission that the Court in its discretion may implead a party to the suit whose presence is necessary for effective adjudication of the suit. He relied upon the case of Aliji Momonji & Co. -v- Lalji Mavji and others, reported in (1996) 5 SCC 379, wherein Hon'ble Supreme Court held as under:
"5. The controversy is no longer res integra. It is settled law by catena of decisions of this Court that where the presence of the respondent is necessary for complete and effectual adjudication of the dispute, though no relief is sought, he is a proper party. Necessary party is one without whose presence no effective and complete adjudication of the dispute could be made and no relief granted. The question is whether the landlord is a necessary or proper party to the suit for perpetual injunction against the Municipal Corporation for demolition of demised building? The landlord has a direct and substantial interest in the demised building before the demolition of which notice under Section 351 was issued. In the event of its demolition, his rights would materially be affected. His right, title and interest in the property demised to the tenant or licensee would be in jeopardy. It may be that the construction which is sought to be demolished by the Municipal Corporation was made with or without the Page 2 of 5 Signature Not Verified Digitally Signed Signed by: ROJALIN NAYAK Designation: JUNIOR STENOGRAPHER Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 05-Aug-2024 16:58:03 consent of the landlord or the lessor. But the demolition would undoubtedly materially affect the right, title and interest in the property of the landlord. Under those circumstances, the landlord necessarily is a proper party, though the relief is sought for against the Municipal Corporation for perpetual injunction restraining the Municipal Corporation from demolition of the building......."
4.1. He further relied upon the case of Mumbai International Airport Private Limited -v- Regency Convention Centre and Hotels Private Limited and others, reported in (2010) 7 SCC 417, wherein at para-13, 22 and 24.4, Hon'ble Supreme Court held as under:
"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:
XXX XXXX XXXX XXXX XXXX XXXX
22. Let us consider the scope and ambit of Order 1 Rule 10(2) CPC regarding striking out or adding parties. The said sub-rule is not about the right of a non-party to be impleaded as a party, but about the judicial discretion of the court to strike out or add parties at any stage of a proceeding. The discretion under the sub-rule can be exercised either suo motu or on the application of the plaintiff or the defendant, or on an application of a person who is not a party to the suit. The court can strike out any party who is improperly joined. The court can add anyone as a plaintiff or as a defendant if it finds that he is a necessary party or proper party. Such deletion or addition can be without any conditions or subject to such terms as the court deems fit to impose. In exercising its judicial discretion under Order 1 Rule 10(2) of the Code, the court will of course act according to reason and fair play and not according to whims and caprice.
XXXX XXXX XXXX XXXX XXXX XXXX 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 Page 3 of 5 Signature Not Verified Digitally Signed Signed by: ROJALIN NAYAK Designation: JUNIOR STENOGRAPHER Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 05-Aug-2024 16:58:03 application seeking impleadment as a proper party and the court finds him to be a proper party, the court may direct his 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 unconditionally or subject to terms."
(Emphasis supplied) 4.2. He, therefore, submits that the Petitioner should be impleaded as a party to the suit.
5. Taking note of the submission made by learned counsel for the Petitioner and on perusal of record, more particularly, the petition filed under Order I Rule 10(2) CPC, it appears that the Petitioner claims to be in possession over the suit property as the son of late Lochan Nayak. As rightly observed by learned Gramanyayadhikari, no document in support of his possession over the suit property was filed before learned trial Court. The Defendants-Opposite Party Nos.12 and 13 in their written statement have not also whisper a single word about the possession much less right to possession of the Petitioner over the suit property. On perusal of the petition under Annexure-4, it appears that the Petitioner claims exclusive possession over the suit property as son of late Lochan Nayak. The Defendants also make a similar nature of claim over the suit property in their written statement. The report submitted by the S.I., Satapada in the proceeding under Section 144 Cr.P.C. is annexed to the CMP as Annexure-1. On perusal of the said report, this Court does not find that the Petitioner is in possession over the suit property.
6. Be that as it may, learned trial Court, while dismissing the petition under Order I Rule 10(2) CPC, has observed that the Petitioner is at liberty to file a separate suit to establish his right, Page 4 of 5 Signature Not Verified Digitally Signed Signed by: ROJALIN NAYAK Designation: JUNIOR STENOGRAPHER Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 05-Aug-2024 16:58:03 title, interest and possession over the suit property. In the case of Mumbai International Airport Private Limited (supra), Hon'ble Supreme Court has categorically held at para-24.4 that learned Court, in its discretion, may dismiss an application under Order I Rule 10 CPC, if it is found that impletion of the party will widen the scope of specific performance of the suit. If the Petitioner is impleaded as a party to the suit, it will certainly widen the scope of the suit, as the Court has to delve into the question as to whether the Petitioner is the son of late Lochan Nayak and he is in possession over the suit property or not.
7. Admittedly, the Plaintiffs do no claim any relief against the present Petitioner. No case is also made out by the Petitioner that he is proper party to the suit and his presence is necessary for just and effective adjudication of the suit.
8. In that view of the matter, this Court finds that learned trial Court has committed no error in dismissing the petition filed by the Petitioner under Order I Rule 10 CPC.
9. Accordingly, this CMP, being devoid of any merit, stands dismissed.
(K.R. Mohapatra) Judge Rojalin Page 5 of 5