Orissa High Court
Biswaranjan Swain And Others vs Madhusmita Parida And Another .... Opp. ... on 1 December, 2023
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: 05-Dec-2023 10:22:17
IN THE HIGH COURT OF ORISSA AT CUTTACK
CMP No. 1276 OF 2023
Biswaranjan Swain and others .... Petitioners
Mr. Rajjeet Roy, Advocate
-versus-
Madhusmita Parida and another .... Opp. Parties
CORAM:
JUSTICE K.R. MOHAPATRA
ORDER
Order No. 01.12.2023
1. 1. This matter is taken up through hybrid mode.
2. Order dated 26th July, 2023 (Annexure-1) passed by learned 2nd Additional Civil Judge (Senior Division), Bhubaneswar in C.S. No.2574 of 2021 is under challenge in this CMP, whereby an application filed by the Petitioners to be impleaded as parties to the suit, has been rejected.
3. Mr. Roy, learned counsel submits that the Petitioners are the flat owners of the apartment, namely, Asima Residency. In order to meet their necessity, these recorded tenant alienated sub-Plot No.5 measuring area of Ac.0.512 decimals from Plot No.298 under Khata No.497 in favour of one, Smt. Asima Rai Choudhury, who mutated the land in her name. In order to develop the property, she executed a development agreement she appointed one, Manjushree Parida as her Attorney Holder and also executed a development agreement with her on sharing basis. The said Manjushree Parida entered into a memorandum of understanding with M/s. APR Construction for construction of multi storey building over the land. After completion of the construction of the apartment, the Petitioners along with others Page 1 of 7 Signature Not Verified // 2 // Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 05-Dec-2023 10:22:17 have purchased separate flats and residing therein. While making construction, the developer has left setback area to the western side of the said apartment. Although a boundary wall was required to be constructed by the recoded tenant, power of attorney holder and the developer, but they did not do so, in spite of the requests of the Petitioners. On the other hand, they connived with the Plaintiff-Opposite Party No.1 and allowed access to her land in Plot No. 298/3143 of Khata No.725/447 in Mouza- Kalarahanga (suit land). Thus, Plaintiff-Opposite Party No.1, namely, Madhusmita Parida mischievously showing the setback area of the aforesaid apartment as the access to her land, raised construction on the adjacent plot. Thus, the Petitioners raised objection to the same and filed UAP Case vide No.22 of 2021 before the Bhubaneswar Development Authority (BDA). Initially the BDA finding a prima facie case in favour of the present Petitioners directed the Opposite Party No.1 to stop construction. During pendency of the UAP Case vide No.22 of 2021, the Opposite Party No.1 in collusion with BDA filed the aforesaid suit, i.e., C.S. No.2574 of 2021 for permanent injunction. Although the action against the Opposite Party No.1 was initiated by the BDA pursuant to the objection of the present Petitioners, they were not made parties to the suit. In the said suit, an interim order of status quo has been passed thereby restraining the BDA to take any action with regard to construction made by the Opposite Party No.1 on the suit land. On the basis of such interim order, UAP Case vide No.22 of 2021 was dropped vide order dated 20th July, 2022. When the Opposite Party No.1 produced the interim order of the Civil Page 2 of 7 Signature Not Verified // 3 // Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 05-Dec-2023 10:22:17 Court before the BDA, the Petitioners came to know about the pendency of the suit and filed an application for intervention.
4. It is submitted by Mr. Roy, learned counsel that the Petitioners have a right over the land, which is claimed as access to the suit land by the Opposite Party No.1. The cause of action for filing of the suit arose when a restraint order was produced by the Opposite Party No.1 before BDA and the UAP Case No. 22 of 2021 was dropped on the basis of the said interim order. Thus, any order that will be passed in the suit has direct bearing on the Petitioners as their right over the setback area is being affected. The Petitioners are not in a position to challenge the interim order passed in C.S. No.2574 of 2021 as they are not parties to the said suit. Thus, in order to enable them to assert their right over the disputed land, they should be impleaded as parties to the suit. Accordingly, they filed an application under Order 1 Rule 10 CPC to be impleaded as parties to the suit. But, learned trial Court observing that the interveners have no right, title or interest over the schedule property or building on which the Court has passed the order of status quo, rejected the petition. It is also observed that the Plaintiff has claimed permanent injunction against the BDA, its agents and officials from entering into the suit land and from demolishing the suit schedule property without following due procedure of law and admittedly neither the present Petitioners have any right, title, interest over the suit land nor the Plaintiff has claimed any relief against the present Petitioners-interveners.
5. Mr. Roy, learned counsel for the Petitioners relied upon the decision of Hon'ble Supreme Court in the case of Aliji Page 3 of 7 Signature Not Verified // 4 // Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 05-Dec-2023 10:22:17 Momonji & Co. -v- Lalji Mavji and others, reported in (1996) 5 SCC 379, wherein it is 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 disputes, 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 licences 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 consent off 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. Under those circumstances, the question of the commercial interest would not arise. In Ramesh Hirachand Kundanmal's case [supra], this Court had pointed out in para18 of the judgment that the notice did not relate to the structure but to two chattels. Original lessee from the landlord had no direct interest in that property. Under these circumstances, it was held that the second respondent has no direct interest in the subject matter of the litigation and the addition thereof would result in causing serious prejudice to the appellant and the substitution or the addition of a new cause of action would only widen the issue which was required to be adjudicated and settled, It is true, as pointed out by Shri Nariman that in para 14, this Court in that case had pointed out that what makes a person a necessary party is not merely that he has relevant evidence to give on some of the questions involved; that would only make him a necessary witness. It is not merely that he has an interest in the correct solution Page 4 of 7 Signature Not Verified // 5 // Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 05-Dec-2023 10:22:17 of some question involved and has thought of relevant arguments to advance. The only reason which makes it necessary to make a person a party to an action is that he should be bound by the result of the action and the question to be settled, therefore, must be a question in the action which cannot be effectually and completely settled unless he is a party. The line has been drawn on a wider construction of the rule between the direct interest or the legal interest and commercial interest. It is not necessary for the purpose of this case to go into the wider question whether witness can be a proper and necessary party when the witness has a commercial interest. This Court in New Redbank Tea Co. Pvt. Ltd. vs. Kumkum Mittal & Ors. [(1994) 1 SCC 402] has pointed out that respondent 11 who filed a suit for specific performance in the High Court was sought to come on record in the suit in which he had no direct interest in the pending matter. Under those circumstances, this Court had held that respondent 11 was neither necessary nor proper party in the lease-hold interest involved in the suit. In Union of India & Anr. vs. District Judge, Udhampur & Ors. [(1994) 4 SCC 737] the Union of India who ultimately had to bear the burden of payment of the compensation was held to be a necessary party under Order 1 Rule 10, CPC for determination of the compensation in respect of the acquired land. In Bihar State Electricity Board vs. State of Bihar & Ors. [(199) 4 Supp. 3 SCC 743] the same question was also reiterated and it was held that the Electricity Board was a person interested and also a necessary party. In Anil Kr. Singh vs. Shivnath Mishra [(1995) 3 SCC 147] similar question was answered holding that the respondent was a necessary party."
6. He also submits that the ratio decided in Sudhamayee Pattnaik and others -v- Bibhu Prasad Sahoo and others, reported in 2022 SCC Online SC 1234, has no application to the case at hand as the issue of impleadment of a lis pendens purchaser was in question in the said case. In the instant case, the Petitioners have interest over the land on which the Opposite Party No.1 claims her access. These aspects were not at all taken into consideration by learned trial Court while Page 5 of 7 Signature Not Verified // 6 // Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 05-Dec-2023 10:22:17 adjudicating the suit. Hence, the impugned order under Annexure-1 is liable to be set aside the Petitioners should be impleaded as parties to the suit.
7. Considering the submissions made by learned counsel for the Petitioners and on perusal of the materials on record, it appears that no relief is claimed against the Petitioners in C.S. No.2574 of 2021 (instant suit). The Plaintiff-Opposite Party No.1 claims permanent injunction against the Defendant-BDA, its agents and officers to restrain them from entering upon the suit building and demolish the structure made thereon. Admittedly, the Petitioners have no claim in respect of the suit property of the Plaintiff-Opposite Party No.1. They claimed that the setback area of their apartment, namely, Asima Residency shown as access to the land of the Opposite Party No.1. The said issue is not the subject matter of dispute in the present suit. If the Petitioners are impleaded as parties and allowed to raise objection in respect of the setback area of the apartment, the scope and ambit of the suit will be expanded. Further it appears that the order passed by the BDA in UAP Case vide No.22 of 2021 initiated at the instance of the Petitioners has not yet been challenged. Admittedly, the order of status quo passed in the present suit does not bind the Petitioners as they are not parties to the suit. Thus, they will not be affected by any order to be passed in the suit.
8. In the case of Sudhamayee Pattnaik (supra), the Hon'ble apex 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 Page 6 of 7 Signature Not Verified // 7 // Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 05-Dec-2023 10:22:17 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."
Thus, a Plaintiff cannot be compelled to litigate with a person against whom he does not claim any relief. However, the Court may suo motu direct impletion of a party to the suit for its effective adjudication. Non-impletion of a party to the suit is at the risk of the Plaintiff. If any legal right of the Petitioners is affected, they may work out their remedy in accordance with law. The case law in Aliji Momonji & Co.(supra) is of no assistance to the case of the Petitioners in view of the discussion made hereinabove.
9. Thus, I find no infirmity in the impugned order under Annexure-1.
10. Accordingly, the CMP being devoid of any merit stands dismissed.
Urgent certified copy of this order be granted on proper application.
(K.R. Mohapatra)
ms Judge
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