Orissa High Court
Prabhudayal Agrawal vs Sundarmuni Balamuni Goutam on 5 July, 2024
Author: K.R. Mohapatra
Bench: K.R. Mohapatra
Signature Not Verified
Digitally Signed
Signed by: MADHUSMITA SAHOO
Designation: Senior Stenographer
Reason: Authentication
Location: High Court of Orissa, Cuttack
Date: 09-Jul-2024 12:57:43
IN THE HIGH COURT OF ORISSA AT CUTTACK
CMP No. 371 OF 2023
(An application under Article 227 of the Constitution of India)
*****
Prabhudayal Agrawal
...... Petitioner
-Versus-
Sundarmuni Balamuni Goutam
and another
....... Opp. Parties
Advocates appeared:
For Petitioner : Mr. Sidharth Mishra, Advocate
For Opp. Parties : Mr. Surya Prasad Mishra, Senior Advocate
being assisted by
Mr. Amit Pattnaik, Advocate
(For Opposite Party No.2)
CORAM :
MR. JUSTICE K.R. MOHAPATRA
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Heard and disposed of on 05.07.2024
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JUDGMENT
K.R. Mohapatra, J.
1. This matter is taken up through hybrid mode.
2. Order dated 25th February, 2023 (Annexure-4) passed by learned Civil Judge (Senior Division), Bhubaneswar in Civil Suit No.2703 of 2022 is under challenge in this CMP, whereby an CMP No. 371 OF 2023 Page 1 of 13 // 2 // Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 09-Jul-2024 12:57:43 application filed by 3rd party Intervener-Opposite Party No.2, has been allowed.
3. Mr. Mishra, learned counsel for the Petitioner submits that the suit has been filed for a declaration that the Registered Power of Attorney No.913 dated 10th May, 2010 executed by the Plaintiff-Petitioner in favour of the Defendant-Opposite Party No.1 is not irrevocable and cancellation thereof. In the alternative, the Plaintiff-Petitioner also sought for relief of cancellation of the same, in the event it is held that the POA is irrevocable one, as the Defendant in favour of whom Power of Attorney was executed, is acting against the interest of the Plaintiff and also for permanent injunction along with consequential and ancillary relief. During pendency of the suit, the Opposite Party No.2 filed an application under Order I Rule 10 (2) CPC to be impleaded as a party to the suit stating that if the outcome of the suit goes in favour of the Plaintiff, it will be seriously prejudiced. Learned trial Court without taking note of the landmark decision of Hon'ble Supreme Court in the case of Sudhamayee Pattnaik and others -v- Bibhu Prasad Sahoo and others, reported in 2022 SCC OnLine SC 1234, allowed the said application.
3.1. Elaborating his submission, Mr. Mishra, learned counsel for the Petitioner contends that no relief is claimed against the Opposite Party No.2, namely, M/s. Anand Granites Exports Pvt. Ltd. The suit can effectively be adjudicated in its absence. The nature of relief claimed in the suit does not in any manner CMP No. 371 OF 2023 Page 2 of 13 // 3 // Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 09-Jul-2024 12:57:43 prejudice the Opposite Party No.2. By impleading Opposite Party No.2 to the suit, learned trial Court expanded the scope of adjudication in the suit filed by the present Petitioner. When the Plaintiff himself does not claim any relief against Opposite Party No.2, it is neither a necessary nor a proper party to suit. He further submits that after declaration of the ratio decided in the case of Sudhamayee Pattnaik and others (supra), scope of Order I Rule 10 CPC has become very limited. It is only when the Court suo motu directs or the Plaintiff seeks for impletion of a party, the discretion under Order I Rule 10 (2) CPC may be exercised.
3.2 In the case of Sudhamayee Pattnaik and others (supra), it has also been declared that non-impletion of a party is at the risk of the Plaintiff. Thus, the risk of non-impletion of Opposite Party No.2 to the suit is with the Plaintiff-Petitioner. By impleading Opposite Party No.2, the suit will unnecessarily be delayed and the purpose for which the suit is filed will be frustrated. Hence, he prays for setting aside the impugned order under Annexure-4 and to direct learned trial Court to proceed with the suit against Opposite Party No.1-Defendant only.
4. Mr. Mishra, learned Senior Advocate appearing for Opposite Party No.2 submits that it is only the Opposite Party No.2, who is going to be seriously prejudiced in the event the relief claimed in the suit is granted in favour of the Plaintiff. The Plaintiff had executed an agreement to transfer the lease in favour of the Opposite Party No.2 and has made an application CMP No. 371 OF 2023 Page 3 of 13 // 4 // Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 09-Jul-2024 12:57:43 before the competent authority for such transfer under the provision of the Mines and Minerals (Development and Regulation) Act, 1957 (for brevity 'MMDR Act'). As per the condition laid down in the said agreement for transfer of lease, the Opposite Party No.2 was to keep the mining operative for grant of approval of the government. The Opposite Party No.2 had to bear all expenses for obtaining clearance from the Ministry of Environment, Forest and Climate change, Ministry of Mines and Indian Bureau of Mines and Director General of Mines Safety-Government of India on behalf of the Plaintiff, who has executed an irrevocable Power of Attorney in favour of one of its employee, namely, Opposite Party No.1 (Defendant No.1 to the suit). By virtue of the Power of Attorney, the Opposite Party No.2-Company made all such payments and borne the expenditure for obtaining the permission from the competent authority to keep the operation of the mines alive. 4.1. The Plaintiff in order to nullify the effect of transaction made by the Opposite Party No.2 for his benefit on the basis of Power of Attorney, executed in favour of one of its employee filed the suit without impleading the Company-Opposite Party No.2 of which the Defendant is an employee, as a party. The Opposite Party No.2 has made the following transactions and expenditure:
"(i) Rs.15,00,000/- to the Plaintiff-Petitioner towards lease transfer application for expenditure incurred for lease application in 2011 etc.
(ii) Rs. 7,74,80,740/- towards Net Present Value (NPV) for entire M.L. Area of 106.138 Hectare towards CMP No. 371 OF 2023 Page 4 of 13 // 5 // Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 09-Jul-2024 12:57:43 "Compensatory Afforestation" as per the recommendation of Central Empowered Committee (CEC), constituted by Hon'ble Supreme Court.
(iii) Rs 5,82,000/- through bank guarantee for approval of Mining Plan under Rule 24A of MC Rules, 1960 from Indian Bureau of Mines, Government of India for period of 2011-12 to 2015-16.
(iv) Rs 14,23,000/- of Penalty amount to comply section 21(5) notice issued by the Odisha Mines Authority for violation carried out by Plaintiff during the period from 2001-2010.
(v) Rs.22,00,000/- for compliance of provision of section 9-A of MMDR Act 1957 and Rule 27 (c) &
(d) of MCR 1960, paid Dead rent and Surface rent for the lease area of 106.138 Hectares for the entire period from 2010-11 to 2020-21.
(vi) Rs.1,36,00,000/- for Technical Service changes to various consultant and Legal service providers from 2010 to 2022.,
vii) Other expenditure on Environment Clearances, Machinery, Tripartite Agreement, Etc."
4.2 Thus, any relief granted in favour of the Plaintiff will directly affect Opposite Party No.2. The Plaintiff-Petitioner by camouflaging the cause of action against the Opposite Party No.2, filed the suit. All the documents were placed before learned trial Court for consideration as to whether the suit can be effectively adjudicated in absence of Opposite Party No.2. Learned trial Court scrutinizing the relevant records, came to hold that when the 3rd party intervener has approached the Court to give him an opportunity while adjudicating the case and keeping in mind the interest of Opposite Party No.2 in the subject matter of dispute, allowed the petition filed under Order I Rule 10(2) CPC.
CMP No. 371 OF 2023 Page 5 of 13// 6 // Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 09-Jul-2024 12:57:43
5. Mr. Mishra, learned Senior Advocate appearing for the Opposite Party No.2 further relied upon the case of Bhavnagar University -v- Palitana Sugar Mill (P) Ltd. and others, reported in (2003) 2 SCC 111, wherein at Paragraph-59, Hon'ble Supreme Court held as under:
"59. A decision, as is well-known, is an authority for which it is decided and not what can logically be deduced therefrom. It is also well-settled that a little difference in facts or additional facts may make a lot of difference in the precedential value of a decision. [See Smt. Ram Rakhi v. Union of India & Ors. [AIR 2002 Delhi 458], Delhi Administration (NCT of Delhi) v. Manoharlal [AIR 2002 SC 3088], Haryana Financial Corporation and Anr. v. M/s Jagdamba Oil Mills & Anr. [JT 2002 (1) SC 482] and Dr. Nalini Mahajan etc. v. Director of Income Tax (Investigation)"
6. He, therefore, submits that the ratio decided in the case of Sudhamayee Pattnaik and others (supra) is an authority, for which it is decided and not what can logically be deduced therefrom. He also submits that a little difference in facts or additional facts may make a lot of difference in the precedential value of a case law. In the case of Sudhamayee Pattnaik and others (supra), issue of impletion of a lis pendens purchaser was under consideration. But, in the present case the Opposite Party No.2 has a direct interest in the subject matter of dispute of the suit and it will be very highly prejudiced, if the suit is decided in its absence.
7. Mr. Mishra, learned Senior Advocate also relied upon the case of State of Madhya Pradesh -v- R.D. Sharma and CMP No. 371 OF 2023 Page 6 of 13 // 7 // Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 09-Jul-2024 12:57:43 another, reported in (2022) 13 SCC 320, wherein at Paragraph- 18, it is held as under:
"18. Pertinently the Administrative Tribunal after considering the relevant factual and legal aspects had rightly rejected the claim of the respondent no. 1 for granting the apex scale on the basis of "equal pay for equal work" in the O.A. filed by him. The said well considered, just and proper order of the Tribunal was wrongly set aside by the High Court on extraneous grounds applying the principle of "equal pay for equal work", while exercising the power of superintendence under Article 227 of the Constitution of India. It is well- settled legal position that the power under Article 227 is intended to be used sparingly and only in appropriate cases for the purpose of keeping the subordinate courts and tribunals within the bounds of their authority and not for correcting mere errors. In the instant case, the Tribunal had not committed any jurisdictional error, nor any failure of justice had occasioned, and hence the interference of the High Court in order passed by the Tribunal was absolutely unwarranted."
(emphasis supplied)
8. He, therefore, submits that Article 227 of the Constitution should be sparingly used by the High Court to keep the sub- ordinate Courts or Tribunal within the bounds of their authority and not for correcting mere errors. In the instant case, learned trial Court has the jurisdiction to entertain an application under Order I Rule 10(2) CPC. Scrutinizing the materials on record, learned trial Court arrived at a conclusion that the Opposite Party No.2 should be impleaded as a party for just adjudication of the suit. There is neither any jurisdictional error in the impugned order nor there any flagrant miscarriage of justice in impleading the Opposite Party No. 2 to the suit. Only because a different view may be possible by relying upon a case law, the CMP No. 371 OF 2023 Page 7 of 13 // 8 // Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 09-Jul-2024 12:57:43 same should not be likely interfered with, more particularly when the facts and circumstances in the case of Sudhamayee Pattnaik and others (supra) are completely different to the present one. Even in a case where an application is filed for impletion of party, the Court can exercise its suo motu power as contemplated in Sub-Rule (2) of Order I Rule 10 CPC. In support of his submission, Mr. Mishra, learned Senior Advocate relied upon the cases of T. Arivandandam -v- T.V. Satyapal and another, reported in (1977) 4 SCC 467, Indrajit Dandasena and others -v- Mangal Charan Dandasena and others, reported in (57) 1984 CLT 31 and Rabindra Mohapatra and others -v- Sauriprasad Malla, reported in 1993 (II) OLR 102. He further relied upon the decision of Patna High Court in the case of Shri Giridhar Gopal and others -v- Smt. Ramawati Devi and others, reported in 2023 SCC OnLine Pat 4109, wherein at Paragraphs-6 and 7, it is held as under:
"6. Law is well settled that the provision of Order 1 Rule 10 (2) of the C.P.C. are very wide and powers of the Court Patna High Court C.Misc. No.1303 of 2018 dt.05- 09-2023 are equally extensive. Even without an applicant to be impleaded as a party, the Court may, at any stage of the proceedings order that the name of any party, ought to have been joined, whether as plaintiff or defendant or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added.
7. The underlying principles regarding the addition of parties is that there must be finality to the litigation and to secure that purpose it would be incumbent upon the Court to add a party whose presence would be necessary CMP No. 371 OF 2023 Page 8 of 13 // 9 // Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 09-Jul-2024 12:57:43 to put an end to all controversy in the litigation finally, "question involved in the suit" referred to in Order 1 Rule 10 CPC means not only the questions involved in the suit originally framed between the parties to the suit but also any dispute between the parties of the suit and a third party, and that the object of the provision is that where several disputes arise out of on subject matter all the parties interested in the such disputes should be brought before the court and all questions in contest between them should be completely settled in the action."
9. He, therefore, submits that the underlying principles regarding addition of parties is to give finality to the litigation and to secure that purpose it would be incumbent upon the Court to add a party whose presence would be necessary to put an end to all "question involved in the suit", which include all controversy in the litigation, finally, Order I Rule 10 CPC means not only the questions involved in the suit originally framed between the parties to the suit but also any dispute between the parties of the suit and a third party, and that the object of the provision is that where several disputes arise out of one subject matter, all the parties interested in the such disputes should be brought before the Court and all questions in contest between them should be completely settled in the action. He, therefore, submits that learned trial Court has committed no error in impleading Opposite Party No.2 as Defendant No.2 to the suit. Hence, he prays for dismissal of the CMP.
10. Heard learned counsel for the parties. Perused the materials on record as well as the case laws.
CMP No. 371 OF 2023 Page 9 of 13// 10 // Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 09-Jul-2024 12:57:43
11. Considering the submissions made by learned counsel for the parties and on perusal of the materials on record, it is apparent that the Opposite Party No.2 was not a party to the suit. During pendency of the suit, it filed an application to be impleaded as a party. The main contention of Mr. Mishra, learned counsel for the Petitioner is that the Plaintiff being the dominus litis and the Court having not exercised its suo motu power to implead a party, such an application at the instance of the Opposite Party is not maintainable in view of the ratio decided in the case of Sudhamayee Pattnaik and others (supra). In the said case law, Hon'ble Supreme Court has categorically held at Paragraph-11 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 dominus 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."
12. Thus, it is apparent from the ratio decided in Sudhamayee Pattnaik and others (supra) that the Plaintiff cannot be compelled to implead a party against whom he does not want to litigate. Of course, non-impletion of a party to the CMP No. 371 OF 2023 Page 10 of 13 // 11 // Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 09-Jul-2024 12:57:43 suit is at the risk of the Plaintiff. It is also held that the Court has suo motu power to implead a party to the suit. In the said case, impletion of a lis pendens purchaser was in question. Thus, Hon'ble Supreme Court analyzing the scope of Section 52 of the Transfer of Property Act vis-à-vis the provision under Order I Rule 10 CPC, declared the ratio.
13. In the case of Bhavnagar University (supra), the Hon'ble Supreme Court has made it clear that a decision, as is well- known, is an authority for which it is decided and not what can logically be deduced therefrom. It is also held therein that a little difference in facts or additional facts may make a lot of difference in the precedential value of a decision. Thus, the contentions of learned counsel for the parties is to be adjudicated keeping in mind the ratio decided vis-à-vis the parameter of Order I Rule 10(2) CPC.
13.1. The Opposite Party No.2 claimed that Defendant No.1 was one of its employee, in whose favour the Plaintiff has executed the Power of Attorney. By virtue of said Power of Attorney, the Opposite Party No.2 has taken steps with the authority under the MMDR Act and incurred huge expenses to keep the mining alive. Thus, in the event of a decree is passed in favour of the Plaintiff, the Opposite Party No.2 will sustain a huge loss.
14. The intention of Order I Rule 10 CPC is to avoid multiplicity of litigation. But, refusing to implead the Opposite Party No.2 to the suit will certainly lead to multiplicity of CMP No. 371 OF 2023 Page 11 of 13 // 12 // Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 09-Jul-2024 12:57:43 litigation, which is against the object and intent of Order I Rule 10 CPC itself. The factual allegation made by the Opposite Party No.2 cannot be said to be irrelevant in the facts and circumstances of the case, as it is alleged that pursuant to the Power of Attorney executed in favour of the Defendant-Opposite Party No.1, the Opposite Party No.2 has made huge expenses and made transactions as well as communications with the authorities under the MMDR Act and other officials to keep the mining activities alive. The Plaintiff-Petitioner in the instant case has sought for a relief of cancellation of said Power of Attorney executed in favour of Opposite Party No.1. Mr. Mishra, learned counsel for the Petitioner also does not dispute the same.
15. Law is well settled in the case of Satya Pal Anand -v- State of Madhya Pradesh and others, reported in (2016) 10 SCC 767 that a beneficiary to the Power of Attorney should be given an opportunity of hearing before a decision is taken for its cancellation. Thus, the Opposite Party No.2 being a beneficiary of the Power of Attorney has a right to be heard in the suit. Every case law has to be applied depending upon the facts and circumstances of the case.
16. In view of the discussions made above, the ratio decided in the case of Sudhamayee Pattnaik and others (supra) has no application to the instant case. Mr. Mishra, learned Senior Advocate also relied upon the case law, wherein it is held that the Court may exercise its suo motu power either without or upon an application. When learned trial Court scrutinizing CMP No. 371 OF 2023 Page 12 of 13 // 13 // Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 09-Jul-2024 12:57:43 materials on record, exercised its sound judicial discretion in favour of the Opposite Party No.2 to be impleaded as a party to the suit, this Court should not interfere with the same lightly only because a different view may be possible on analysis of the materials on record.
17. Further impletion of Opposite Party No.2 does not expand the scope of suit, as alleged by Mr. Mishra, learned counsel for the Petitioner. Rather it would assist the Court for just and proper adjudication of the case. The Opposite Party No.2 sought to be impleaded as a party to the suit as the employer of Defendant-Opposite Party No.1. Accordingly, this Court does not find any infirmity in the impugned order under Annexure-4.
18. As such, the CMP being devoid of any merit stands dismissed. In the facts and circumstances of the case, there shall be no order as to costs.
(K.R. Mohapatra) Judge Orissa High Court, Cuttack, Dated 5th July, 2024/Madhusmita CMP No. 371 OF 2023 Page 13 of 13