Jata Majhi vs Pudi

Raghubir Dash, J.—This Misc. Appeal is in challenge of the judgment dated 29.9.2003 passed by the learned Additional District Judge (First Track Court), Baripada in T.A. No. 26/30 of 2003-2000 setting aside the ex parte preliminary decree dated 14.10.1998 passed by the learned Civil Judge (Senior Division), Baripada in T.S. No. 82/96 remanding the suit to the trial court for disposal afresh in accordance with law only after impleading the appellant in the I.A., namely, Pudi @ Ladai Majhi as a defendant in the suit.

The aforestated suit for partition is filed by the present appellants claiming 1/3rd share in the suit property. It is claimed that the suit property originally belonged to Ruhida Majhi who died leaving behind four sons, namely, Kuldha, Tebe, Lawa and Churia. Kuldha died leaving behind no heir; plaintiff No. 1 and Defendant No. 1 belong to the branch of Tebe; Plaintiff Nos. 2 to 4 belong to the branch of Lawa, and Defendant Nos. 2, 3 and 4 belong to the branch of Churia.

In the suit, all the defendants were set ex parte. After recording of evidence, the ex parte preliminary decree was passed directing partition of the ''B'' Schedule property into three shares. During pendency of the final decree proceeding, Pudi @ Ladai Majhi, the appellant before the learned lower Appellate Court, filed a petition under O. 1 r. 10 of the C.P.C. to implead her as a party in the suit claiming that she being the grand-daughter of late Kuldha Majhi, one of the four sons of Ruhida Majhi, has got a share in the suit property. That petition was dismissed by the learned trial court vide order No. 53 dated 8.5.2001. Against that order she preferred Civil Revision No. 13/18 of 2002/2001 before the learned Ad hoc Additional District Judge (First Track Court), Baripada which was also dismissed on merit vide order dated 29.1.2003. It is alleged by the present appellants that after passing of the preliminary decree said Pudi @ Ladai Majhi preferred the Title Appeal before the learned Additional District Judge suppressing the fact that her application under O. 1 r. 10 of the C.P.C. was dismissed against her. Even the order of dismissal of the Civil Revision which was passed during pendency of the Title Appeal was not brought to the notice of the Appellate Court. The said Title Appeal has been disposed of vide the impugned order.

The appellants challenge the impugned order of remand with the main contention that the order passed in the Civil Revision operates as res judicata and the learned lower Appellate Court could not have allowed the appeal with direction to implead Pudi @ Ladai as Defendant.

Said Pudi @ Ladai, arrayed as Respondent No. 1 in this appeal, having died during pendency of the appeal, her name has been deleted from the cause title, on the application of the appellants that she has died leaving behind no legal heir. Rest of the Respondents support the stand taken by the appellants. The grounds taken in the appeal memo have been reiterated while arguing the appellants'' case challenging the impugned order. However, this Court finds the impugned order to be sustainable for the reasons stated hereunder.

The petition under O. 1 r. 10 of the C.P.C. filed by Pudi @ Ladai Majhi was rejected by the learned trial Court. The order of rejection is not an appellable order. Perhaps for that reason a Civil Revision was preferred. The Civil Revision was filed in the year 2001. It was dismissed on 29.01.2003. In the meanwhile, the Code of Civil Procedure (Amendment) Act, 1999 amending inter alia Section-115 of C.P.C. came into force. The amended provision of Section-115 of the C.P.C. was made operative w.e.f. 1.7.2002. Section-32(i) of the Amendment Act, 1999 makes the amended provisions of Section-115 of the C.P.C. applicable to all revision proceedings which were pending as on the date the Amendment Act, 1999 became operative. Consequently, the amended Section-115 of the C.P.C. is applicable to the revision which were filed by Pudi @ Ladai Majhi as it was still pending as on 1.7.2002. That revision petition was against the order of rejection of an application under O. 1 rule-10 of the C.P.C. Had the application been allowed in favour of Pudi @ Ladai Majhi it would not have had the effect of final disposal of the suit in which the application was filed. The effect of the amendment of Section-115 of the C.P.C. brought about under Amendment Act, 1999 is that an order made in course of a suit or other proceeding cannot be interfered with under Section-115 of C.P.C. unless it can be shown and found that if the order impugned would have been made in favour of the party applying for revision, it would have finally disposed of the suit or the proceeding. In that view of the matter, the revision proceeding filed by Pudi @ Ladai Majhi was not maintainable. But without examining that aspect the revisional court entertained the revision even though it was not admissible. In the result, the order of dismissal of the revision passed on 29.01.2003 is non est in the eye of law and for that the contention that the order passed in the Civil Revision operates as res judicata is not sustainable.

The Title Appeal was filed in the year 2000 to set aside the ex parte preliminary decree passed in T.S. No. 82 of 1996 wherein Pudi @ Ladai Majhi, who was refused to be impleaded as a party in the suit, contended that though after death of her father she succeeded her father''s 1/4th share in the suit property, she was not impleaded in the suit as a party and she being a necessary party to the suit the impugned ex parte decree should be set aside. Learned lower appellate court passed the impugned order, set aside the ex parte preliminary decree, and remanded the suit to the trial court for fresh disposal after impleading the appellant as a party. While passing the impugned order the learned lower appellate court has taken into consideration relevant facts available on record to conclude that the appellant Pudi @ Ladai Majhi is a necessary party to the suit and that the trial court should not have proceeded in the matter without impleading her as a party to the suit. Law is well settled that if in the course of a suit any interlocutory order has been passed against which the aggrieved party has not challenged either in the trial court or in the higher forum, then the grievance can be agitated in the first appeal arising out of that suit. Therefore, Pudi @ Ladai Majhi has rightly agitated her grievance before the first appellate court and the latter has rightly passed the impugned order. Therefore, this Court is of the considered view that the impugned order needs no interference.

Accordingly, the M.S.A. stands dismissed but in the facts and circumstances without cost.