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Judgment
K.R. Mohapatra, J
This matter is taken up through hybrid mode.
Order dated 29th July, 2022 (Annexure-4) passed by learned Senior Civil Judge, Sambalpur in C.S. No.199 of 2016 (inadvertently stated as C.S. No.199 of 2013) is under challenge in this CMP, whereby an application filed by the Opposite Party No.4-Intervenor under Order 1 Rule 10(2) C.P.C., has been allowed.
Mr. Pradhan, learned counsel for the Petitioner submits that the Plaintiff has purchased Schedule-A land to an extent of Ac.0.270 decimals in an auction held by the Bank of Baroda. Since Defendant No.2 created disturbance over the suit property claiming that he has purchased the same from Defendant No.1, the suit has been filed to declare that the Defendant No.2 did not derive any right, title and interest over the suit Schedule-B property by virtue of the sale deed executed by Defendant No.1. It is further submitted that out of the Schedule-A land, the Plaintiff had alienated a portion of the suit property in favour of the Opposite Party No.4-Intervener. However, the Plaintiff does not claim any relief in respect of the said portion, as it does not cover the portion purchased by Defendant No.2 from Defendant No.1. During pendency of the suit, the Opposite Party No.4-Intervener filed an application under Order 1 Rule 10(2) C.P.C. to be impleaded as a party to the suit. Learned trial Court holding that the Opposite Party No.4-Intervener is a necessary party, allowed such application. Hence, this CMP has been filed.
It is submitted by Mr. Pradhan, learned counsel for the Petitioner that the Plaintiff does not claim any relief against Opposite Party No.4 or the land purchased by her. The suit has been filed claiming relief against Defendants-Opposite Party Nos.1 and 2 only in respect of Schedule-B land, which does not cover the land purchased by Opposite Party No.4. Thus, the Opposite Party No.4 is neither a necessary nor a proper party to the suit. By impleading the Opposite Party No.4 to the suit not only the scope of the suit is enlarged, but the same resulted in the abuse of process of Court. Hence, he prays for setting aside the impugned order under Annexure-4.
He also relied upon the decision in the case of Sudhamayee Pattnaik and others –v- Bibhu Prasad Sahoo and others, reported in 2022 SCC Online SC 1234, in which the Hon’ble Supreme Court has held that the Plaintiff cannot be compelled to implead a person to the suit against whom he neither claims any relief nor wants to litigate. It is, of course, subject to the risk of the Plaintiff. The Court can also suo motu direct to implead a party for just adjudication of the suit. In the instant case, neither the Plaintiff seeks to implead the Opposite Party No.4 as a party to the suit nor learned trial Court suo motu directed so. Hence, impugned under Annexure-4 is not sustainable.
Upon hearing learned counsel for the Petitioner and on perusal of the impugned order under Annexure-4, it appears that learned trial Court proceeded on a footing that the Opposite Party No.4 is a necessary party to the suit as there was an agreement for sale of rest of Ac.0.11 decimals in her favour. Such a claim may not be entertained in the present suit, as the relief claimed is only in respect of Schedule-B land. Further learned trial Court while adjudicating the matter did not take into consideration the ratio decided in the case of Sudhamayee Pattnaik and others (supra). In that view of the matter, this Court feels that the Plaintiff-Petitioner should move learned trial Court for variation/recall of the impugned order.
Accordingly, this Court without expressing any opinion on the merits of the case of the Petitioner, disposes of the CMP with a direction that in the event, the Petitioner files an application to recall the order dated 29th July, 2022 passed in C.S. No.199 of 2016 within a period of two weeks hence, learned Senior Civil Judge, Sambalpur shall do well to consider the same in accordance with law giving opportunity of hearing to the parties concerned and pass a reasoned order thereon.
Urgent certified copy of this order be granted on proper application.
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