Pradeep Kumar Routray vs Mira Devi Dasrapuria

K.R. Mohapatra, J

This matter is taken up through hybrid mode.

Judgment dated 21st December, 2022 (Annexure-1) passed by learned District Judge, Khurda at Bhubaneswar in FAO No.29 of 2022 is under challenge in this CMP, whereby dismissing the appeal, he confirmed the order dated 28th March, 2022 passed by learned Senior Civil Judge (LR&LTV), Bhubaneswar in I.A. No.1 of 2020 (arising out of C.S No.1478 of 2020) dismissing an application under Order XXXIX Rules 1 and 2 C.P.C.

Mr. Bose, learned counsel submits that the Petitioner as Plaintiff filed the suit for partition, declaration and permanent injunction. Along with the plaint, the Petitioner also filed I.A. No.1 of 2020 under Order XXXIX Rules 1 and 2 C.P.C. Although both the Courts concurrently held that the Petitioner has a prima facie case, but due to non-impleation of co-sharers as parties to the suit as well as to the I.A, they refused to grant the prayer made in the petition under Order XXXIX Rules 1 and 2 C.P.C. Hence, this CMP has been filed.

In course of argument, learned counsel for both the parties submit that an application has already been filed under Order 1 Rule 10 C.P.C. to implead the siblings of the Plaintiff-Petitioner as parties to the suit.

Since an application under Order 1 Rule 10 C.P.C. to implead the siblings of the Plaintiff-Petitioner as parties to the suit is pending for consideration, this Court disposes of this CMP with an observation that in the event the petition under Order 1 Rule 10 C.P.C. is allowed, the Petitioner may move learned trial Court afresh by filing a petition under Order XXXIX Rules 1 and 2 C.P.C. and in that event, learned trial Court shall entertain such application without being influenced by the observations made in the orders impugned herein, providing opportunity of hearing to the parties concerned.

Urgent certified copy of this order be granted on proper application.

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