Allowed

Deepak Singh v. Sandhyarani Giri

Orissa HC16 Nov 2016CMP/450/2016

Case brief

AI extract

What is this about?

This writ petition challenged the rejection of an application for impleadment under Order I Rule 10 CPC. The High Court quashed the impugned order, holding that the petitioner was a proper party due to possession and the overlapping subject matter. It directed consolidation of the two pending suits.

What did the court decide?

Impugned order quashed; application for impleadment allowed; suits consolidated to be disposed of within six months.

Deepak Singh Vs Sandhyarani Giri — Contract and Commercial Disputes | Orissa HC (2016)

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HIGH COURT OF ORISSA: CUTTACK

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CMP No.450 of 2016

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In the matter of an application under Article 227 of the Constitution of India.

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----------Deepak Singh …. Petitioner

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Versus

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Sandhyarani Giri & another …. Opposite parties For Petitioner … Mr. Ramakanta Kar, Advocate For Opp. Parties … Mr. Durga Prasad Jena, Advocate (For O.P.1) Mr. Kamal Ray, Advocate (For O.P.2)

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J U D G M E N T

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PRESENT:

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THE HONOURABLE DR. JUSTICE A.K.RATH

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Date of hearing: 8.11.2016 : Date of judgment: 16.11.2016

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Dr. A.K.Rath, J This petition challenges the order dated 4.2.2016 passed by the learned Civil Judge (Senior Division), Talcher in C.S No.39 of 2012 whereby and whereunder the learned trial court rejected the application of the petitioner under Order 1 Rule 10 CPC for impleadment.

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2. Opposite party no.1 as plaintiff instituted C.S. No.39 of 2012 in the court of learned Civil Judge (Senior Division), Talcher for mandatory injunction impleading opposite party no.2 as defendant. The petitioner, who is the son of opposite party no.2, instituted C.S. No.129 of 2005 in the same court impleading opposite parties and others for declaration of sale deed dated 20.11.2002 as void,

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declaration of right, title and interest and possession over the suit property and permanent injunction. The schedule property in both the suits is same. While the matter stood thus, the petitioner filed an application under Order 1 Rule 10 CPC in C.S. No.39 of 2012 stating therein that he has filed C.S. No.129 of 2005 impleading the parties in the suit for a declaration of right, title and interest and possession over the suit land, wherein the validity of the sale deed dated 20.11.2002 has been challenged. He is in possession of the suit schedule property. The plaintiff filed an objection to the same. Learned trial court came to hold that the intervenor is the son of the defendant. In the event he is allowed to be impleaded in the suit on the ground that he is in possession of the suit property, then tomorrow the other family members of the defendant would come forward to stake claim. Further, the intervenor has not stated that defendant has acted adverse to his interest. Held so, learned trial court rejected the application.

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3. Heard Mr.Ramakanta Kar, learned counsel for the petitioner, Mr. Durga Prasad Jena, learned counsel for the opposite party no.1 and Mr. Kamal Ray, learned counsel for the opposite party no.2.

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4. The distinction between a necessary party and a proper party is well known. In Udit Narain Singh Malpaharia v. Additional Member Board of Revenue, Bihar and another, AIR 1963 SC 786, the apex Court held that a necessary party is one without whom no order can be made effectively; a proper party is one in whose absence an effective order can be made but whose presence is necessary for a complete and final decision on the question involved in the proceeding.

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5. In Razia Begum v. Sahebzadi Anwar Begum and others, AIR 1958 SC 886, the apex Court held that it is firmly established as

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a result of judicial decisions that in order that a person may be added as a party to a suit, he should have a direct interest in the subject matter of the litigation whether it raises questions relating to moveable or immoveable property.

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6. On the anvil of the decisions cited supra, the case may be examined. The policy of law is to avoid multiplicity of proceedings. The suit schedule property in both the suits is same. The validity of the sale deed executed by the defendant in C.S. No.129 of 2005 is the subject-matter of dispute in the suit filed by the intervenorplaintiff in C.S No.39 of 2012. The reason assigned by the learned trial court is difficult to fathom. In an application for impleadment, the court has to see whether the intervenor is necessary or proper party to the suit. Learned trial court has not rendered any finding to that effect. The intervenor is a proper party to the suit.

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7. In view of the same, the order dated 4.2.2016 passed by the learned Civil Judge (Senior Division), Talcher in C.S No.39 of 2012 is quashed. The application under Order 1 Rule 10 CPC is allowed. Since both the suits are pending in the same court, learned trial court shall consolidate both the suits and dispose of the same within a period of six months from the date of production of a certified copy of the order.

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The petition is allowed. No costs.

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DR. A.K.RATH, J.

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Orissa High Court, Cuttack. Dated 16^th November , 2016/ Pradeep .

Deepak Singh v. Sandhyarani Giri

Case brief

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Deepak Singh v. Sandhyarani Giri

Case brief

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