Suresh Kumar Das vs Manjurani Bhuyan And Others

K.R. Mohapatra, J

This matter is taken up through hybrid mode.

Order dated 3rd August, 2023 (Annexure-1) passed by learned Senior Civil Judge, Jaleswar in CS No.317 of 2017 is under challenge in this CMP, whereby an application under Order 1 Rule 10(2) CPC to implead the Petitioner as a party to the suit has been rejected.

It is submitted by Mr. Bose, learned counsel for the Petitioner that the suit has been filed for partition and permanent injunction by the Plaintiff/Opposite Party No.1. While preparing the plaint, the Plaintiff has omitted to state about the branch of the Petitioner. When the Petitioner came to know about pendency of the suit, he filed an application under Order 1 Rule 10(2) CPC with a prayer to implead him as a party to the suit and contest the same. Initially, similar nature of applications was rejected vide order dated 28th November, 2022 on the ground that no document in support of the claim of the Petitioner as co-sharer of the joint family property was filed. Thus, while rejecting the application, learned trial Court gave liberty to file fresh application under Order 1 Rule 10 CPC.

3.1 It is submitted that while deciding the application, learned trial Court also held that the Petitioner is a necessary party to the suit. Second such application was rejected on 9th May, 2023 for filing of the application without any supportive documents. Thus, the present petition filed under Order 1 Rule 10(2) CPC along with documents, i.e., ROR at Annexure-4 and Hal-Sabik co-relation. Learned trial Court holding that similar such applications have been dismissed by the Court on two occasions and that the documents filed by the Petitioner does not show the relationship of the Petitioner with the Plaintiff, dismissed the application. It is his submission that learned trial Court, while adjudicating the petition, delved into merit of the petition, which is not permissible while entertaining the application under Order 1 Rule 10 CPC. When the Petitioner has come to the Court with definite case that he represents another branch of the joint family and he is a necessary party to the suit for partition, learned trial Court should have allowed the petition. He, therefore, prays for setting aside the impugned order and direct learned trial Court to implead the Petitioner as a Defendant to the suit.

Considering the submission of Mr. Bose, learned counsel for the Petitioner and perusal of record, more particularly Annexure-4, the ROR does not disclose the name of the Petitioner. It is submitted that the Petitioner is the son of one Fulamani Behera. But, no supporting document with regard to the averment that Petitioner is the son of said Fulamani Behera has been filed. Further, Hon’ble Supreme Court in the case of Sudhamayee Pattnaik and others Vs. Bibhu Prasad Sahoo and others, reported in 2022 SCC Online SC 1234 held that Plaintiff cannot be compelled to implead person(s) against whom he does not claim any relief, unless it is suo motu directed by the Court. Non-impletion of any person as defendant shall be at the risk of the plaintiffs. Since the Plaintiff has raised objection to the impletion of the Petitioner as a party to the suit, this Court is of the considered opinion that learned trial Court has not committed any error in rejecting the application under Order 1 Rule 10 CPC.

Accordingly, the CMP being devoid of any merit stands dismissed. Petitioner may workout his remedy, if available under law.

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