Orissa High Court
Sk. Raheman Ali @ Alli And Others vs State Of Odisha And Others .... Opp. ... on 14 July, 2023
Author: K.R. Mohapatra
Bench: K.R. Mohapatra
IN THE HIGH COURT OF ORISSA AT CUTTACK
CMP NO.1309 OF 2015
SK. Raheman Ali @ Alli and others .... Petitioners
Mr. Samir Kumar Mishra, Senior
Advocate, assisted by Ms. P.S. Mohanty, Advocate
-versus-
State of Odisha and others .... Opp. Parties
Mr. Debashish Kumar Panda, Advocate
on behalf of Mr. Devashis Panda, Advocate
CORAM:
JUSTICE K.R. MOHAPATRA
ORDER
Order No. 14.07.2023 18. 1. This matter is taken up through hybrid mode.
2. This CMP has been filed assailing the order dated 19th September, 2015 (Annexure-1) passed by learned Additional Civil Judge (Senior Division), Balasore in Civil Suit No.783 of 2011 (Civil Suit No.24 of 2015), whereby an application filed by the Petitioners- Defendant Nos.5 to 7 to be transposed as Co-Plaintiffs, has been dismissed.
3. It submitted by Mr. Mishra, learned Senior Counsel, appearing for the Petitioners that Defendant Nos.5 to 7 in the suit are the Petitioners in this CMP.
4. In the said suit, Plaintiff Nos.1 to 3 and 5 filed a petition for withdrawal of the suit. Further, Plaintiff Nos.4 and 6 filed an application under Order I Rule 10 CPC to delete their names stating that they did not want to pursue the suit. A third application was also filed by the Petitioners-Defendant Nos.5 to 7 to be transposed as Plaintiffs. Learned trial Court, while allowing the petition filed by Plaintiff Nos.1 to 3 and 5 for Page 1 of 3 // 2 // withdrawal of the suit and petition filed by the Plaintiff Nos. 4 and 6 under Order I Rule 10 CPC to delete their names, rejected the petition filed by the Petitioners- Defendant Nos.5 to 7 to be transposed as Plaintiffs. It is submitted by Mr. Mishra, learned Senior Counsel and that although in the first part of the impugned order rejecting the petition to transpose the Petitioners as Plaintiffs, learned trial Court has held that they (Defendant Nos. 5 to 7) have subsisting right to sue at the time of filing of the suit, but rejected the petition recording that they have no right to sue. It is submitted that the suit was filed essentially to declare the proceedings under Section 145 Cr.P.C. initiated in Misc. Case No.352 of 2009 before learned Executive Magistrate and Sub-divisional Magistrate, Basalore as null and void and without jurisdiction and for permanent injunction. The petitioners- Defendant No.5 to 7 have no adverse interest against that of the Plaintiffs in the said suit. In view of the finding of learned trial Court that the Petitioners-Defendant Nos.5 to 7 have no right to sue, the same may affect the right of the Petitioners to file a fresh suit or to pursue their right in any other proceeding.
4.1 Admittedly, the Petitioners- Defendant Nos.5 to 7 sail in the same boat with that of the Plaintiffs. Since the Plaintiffs did not want to pursue the suit and the Defendants have a subsisting right in the relief claim in the said suit, they should have been transposed as Plaintiffs.
5. Mr. Mohanty, learned counsel for the Opposite Party Nos.5 to 10 submits that the Plaintiffs may not have any cause of action to pursue the relief sought for in the suit as no orders were passed against them in a 145 proceeding. If the Defendant Nos.5 Page 2 of 3 // 3 // to 7 are anyway aggrieved, they may initiate a fresh proceeding in accordance with law. When the Plaintiffs did not want to pursue the suit, learned trial Court has committed no error in refusing such prayer and disposing of the suit. In respect of the self-same property, Civil Suit No.310 of 2005 was filed before the same Court seeking for declaration of the sale deed involved to be null and void. In that case, the present Petitioners were Defendant Nos.2 to 4. They were subsequently transposed as Plaintiffs. But fact remains that they did not pay the Court fee and the order transposing them as Plaintiffs has already been recalled. Thus, no fruitful purpose will be served by interfering with the impugned order.
6. Considering the rival contentions of the parties, this Court finds that the Plaintiffs in Civil Suit No.783 of 2011 had come to be with a definite plea and they subsequently did not want to pursue the suit. Accordingly, separate petitions were filed by the Plaintiffs which ultimately yielded in disposal of the suit. In the said suit, Petitioners were impleaded as Defendant Nos.5 to 7. Thus, their right is no way affected by withdrawal of the suit. If there is in cause of action, the Defendants may pursue the remedy in accordance with law. With the said observation, this Court disposes of the CMP without interfering with the impugned order.
7. Accordingly, the CMP is disposed of with the aforesaid observation.
Issue urgent certified copy of this order on proper Signature Not Verified Digitally Signed Signed by: ROJALIN NAYAK application.
Designation: Junior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack (K.R. Mohapatra) Date: 17-Jul-2023 10:40:02 Rojalin Judge Page 3 of 3