Disposed

Lalit Deep v. Anup Kumar Chandan

Orissa HC7 Sept 2021CMP/152/2021

Case brief

AI extract

What is this about?

The High Court rejected the civil revision application challenging the order allowing impleadment of legal heirs under Order I Rule 10(2) CPC, viewing the early application as a lapse by the plaintiff, yet awarded costs to mitigate loss.

What did the court decide?

The civil revision petition is disposed of; the impugned order stands enforced subject to payment of Rs. 20,000 costs to the defendants by the plaintiff.

Lalit Deep Vs Anup Kumar Chandan — Property and Title | Orissa HC (2021)

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IN THE HIGH COURT OF ORISSA AT CUTTACK

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CMP No. 152 of 2021

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Lalit Deep

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…. Petitioner

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Mr. Anam Charan Panda, Advocate

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-versus-

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Anup Kumar Chandan and others

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Opp. Parties

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Mr. Trilochan Nanda, Advocate (For Opposite Party No.1)

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CORAM: JUSTICE K.R. MOHAPATRA

ORDER

Order No.

07.09.2021

This matter is taken up through hybrid mode.

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This CMP has been field assailing order dated 7^th December, 2020 (Annexure-5) passed by learned Civil Judge (Senior Division), Patnagarh in CS No.10 of 2012 whereby he allowed an application filed by Plaintiff/Opposite Party No.1 under Order I Rule 10(2) CPC to implead the widow and daughters of late Kaibalya Bag @ Ganda as Defendants to the suit.

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Mr. Panda, learned counsel for the Petitioner submits that in the midst of argument of the suit, the Plaintiff filed an application under Order I Rule 10 (2) CPC to implead the widow of late Kaibalya Bag @ Ganda, namely, Padma Bag @ Ganda, two daughters, namely, Sumati Bag @ Ganda and Sumitra Bag @ Ganda as Defendant Nos.7 to 9 and Angad Deep, son of Rajaram Deep as Defendant No.10, as parties to the case. Learned Civil Judge, while allowing an application in respect of Padma Bag, Sumati Bag and Sumitra Bag, but rejected the same in respect of Angad Deep, vide order dated 7^th December, 2020.

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Page 1 of 4

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// 2 //

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It is submitted by Mr. Panda, learned counsel for the Petitioner that the suit has been filed for declaration and other consequential relief. The Plaintiff claims his title over the suit land stating that Kaibalya Bag was the recorded tenant in respect of the suit land and he sold the same to one Achyutananda Patel vide registered sale deed dated 31^st January, 1973 and said Achyutananda Patel for his legal necessity sold the suit land to one Sudarsan Bag vide registered sale deed dated 15^th May, 1974 and the Plaintiff purchased the suit property from said Sudarsan Bag vide registered sale deed dated 2^nd January, 1986 and is in possession over the same exercising his right, title and interest thereon. Although it is known to the Plaintiff that the widow of late Kaibalya Bag is alive and he had two daughters and two sons, he preferred not to implead the widow and daughters of the said Kaibalya Bag as parties to the suit. At the fag end, when argument of the suit was going on, the Plaintiff filed an application under Order 1 Rule 10(2) CPC (Annexure-3) to implead them as parties. It is stated in the said application that Defendant Nos. 2, 3 and 5 in their written statement have erroneously stated that the wife of late Kaibalya Bage @ Ganda was dead. The daughters of said Kaibalya Bag were not heard for many years. Thus, the Plaintiff could not implead them as parties. The plea taken by the Plaintiff was not correct, as the daughters of Kaibalya Bag were staying at Patnagarh and the Plaintiff was well-aware at the time of filing of the suit that the widow of said Kaibalya Bag was alive. In that view of the matter, learned Civil Judge has committed gross error of law in allowing the application under Order-1 Rule 10(2) CPC, more particularly when the Plaintiff has not shown any diligence in not

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Page 2 of 4

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// 3 //

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impelading the widow and daughters of late Kaibalya Bag as parties at the time of institution of the suit.

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Mr. Nanda, learned counsel for Plaintiff/Opposite Party No.1 refuting the submissions made by Mr. Panda, learned counsel for the Petitioner, submits that the contesting Defendants at paragraph-7 of their written statement have categorically stated that the widow of late Kaibalya Bag was dead. Further the Plaintiff was not aware of the fact that said Kaibalya Bag had two daughters and when they recently came back to the village, it came to his knowledge and he filed the application for impletion of the widow and daughters of said Kaibalya Bag as parties to the suit. The Petition under Order 1 Rule 10(2) CPC filed by the Plaintiff is, therefore, bona fide and the impugned order should not be interfered with.

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Taking into consideration the submissions made by learned counsel for the parties and the fact that the suit land was originally recorded in the name of late Kaibalya Bag @ Ganda, the legal heirs of said Kaibalya Bag are necessary parties to the suit. But fact remains that the Plaintiff could have filed an application under Order I Rule 10 (2) CPC at appropriate stage. Admittedly, such an application has been filed when the contesting Defendants have already concluded their argument in the suit.

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A petition under Order-I Rule 10(2) CPC can be entertained at any stage of the suit if the Court is satisfied that their presence before the Court is necessary in order to enable the Court to effectually and completely adjudicate upon and settle all the questions involved in the suit. Since learned trial Court considering the rival contentions of the parties, recorded its satisfaction that

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Page 3 of 4

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presence of the widow and daughters of late Kaibalya Bag are necessary for effective and proper adjudication of the suit, I am not inclined to interfere with the same in exercise of power under Article 227 of the Constitution of India. However, the loss suffered by the present Petitioner can be compensated by awarding adequate cost.

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Taking into consideration the facts and circumstances of the case, cost of Rs.20,000/- (rupees twenty thousand only) will be just and adequate to mitigate the loss suffered by Defendant Nos. 2, 3 and 5.

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8.1 Accordingly, the CMP is disposed of with a direction that the impugned order dated 7^th December, 2020 (Annexure-5) passed by learned Civil Judge (Senior Division), Patnagarh in CS No.10 of 2012 shall be effective upon payment of cost of Rs.20,000/(rupees twenty thousand only) to the Defendant Nos. 2, 3 and 5 by the Plaintiff before the learned trial Court. And in such event, learned trial Court should make an endeavour for early disposal of the suit after appearance of the newly added Defendants.

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Issue urgent certified copy of the order on proper application.

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s.s.satapathy

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(K.R. Mohapatra) Judge

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Page 4 of 4

Lalit Deep v. Anup Kumar Chandan

Case brief

What is this about?

What did the court decide?

Lalit Deep v. Anup Kumar Chandan

Case brief

What is this about?

What did the court decide?

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