Dismissed

Rashmirekha Mishra v. Niranjan Mishra

Orissa HC8 Mar 2021WP(C)/26989/2011

Case brief

AI extract

What is this about?

The High Court dismissed a writ petition seeking to set aside an order impleading a buyer of sold property as a necessary party to a counter-claim in a partition suit, holding that admission of the sale made the buyer a necessary party and found no infirmity in the subordinate court's order.

What did the court decide?

Writ petition dismissed; interim order dated 28.11.2011 vacated; parties to cooperate with the trial court.

Rashmirekha Mishra Vs Niranjan Mishra — Property and Title | Orissa HC (2021)

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W.P.(C) No.26989 of 2011

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08.03.2021 Heard Mr. Banshidhar Baug, learned counsel for the petitioner and Mr. Soumya Sekhar Parida, learned counsel on behalf of Mr. D.K. Patnaik, learned counsel for opposite party no.1

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The petitioner in this writ petition seeks to assail the order dated 04.12.2010 (Annexure-3) passed by learned Civil Judge (Senior Division), Athagarh in C.S. No.(I) 26 of 2009, whereby he allowed an application under Order I Rule 10(2) C.P.C. impleading one Smt. Arnapurna Mishra as a party to the counter claim filed by defendant no.1.

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Mr. Baug, learned counsel for the petitioner submits that C.S.No.(I) 26 of 2009 has been filed for partition of the suit schedule property. The property included in the counter claim filed by defendant no.1 does not form a part of the suit schedule property.

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There is no whisper in the counter claim to the effect that the suit schedule property was sold in favour of Smt. Arnapurna Mishra. At a belated stage, said defendant no.1 filed an application under Order I Rule 10(2) C.P.C. to implead said Arnapurna Mishra as a party to the counter claim stating that plaintiff no.1 and defendant no.1 have jointly sold the schedule land of the counter claim to her.

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It is his submission that the schedule property in the counter claim does not form a part of the suit

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schedule property. Thus, the counter claim is not maintainable. He further submits that when the plaintiff no.1 and defendant no.1 have jointly sold the land to said Arnapurna Mishra, they cannot have any grievance against such alienation. As such, said Arnapurna Mishra is not a necessary party to the counter claim. He further submits that said Arnapurna Mishra is staying out of India. Thus, by impleading her as a party to the counter claim, there will be delay in disposal of the suit. These material aspects were not taken into consideration by learned Civil Judge (Senior Division), Athagarh. Only taking into consideration the fact that the property in the counter claim was sold to Smt. Arnapurna Mishra, learned Civil Judge (Senior Division), Athargarh held that she is a necessary party to the counter claim and allowed the petition without considering the objection filed by the plaintiff. Hence, he prays for setting aside the impugned order under Annexure-3.

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Mr. Parida, learned counsel on behalf of Mr. Patanaik, learned counsel for opposite party no.1 submits that in the meantime, said Smt. Arnapurna Mishra had sold the property to one Smt. Snigdha Sahoo and she has already been impleaded as a party to the counter claim. Thus, the impugned order is no more available to be challenged. He further submits that acceptability of the counter claim is not

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the question in this writ petition. Further, there is no dispute to the effect that said Smt. Arnapurna Mishra had purchased the land involved in the counter claim. Thus, she is a necessary party to the counter claim. As such, there is no infirmity in the impugned order and the writ petition being devoid of any merit is liable to be dismissed.

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Taking into consideration the submissions made by learned counsel for the parties and the fact that the counter claim filed by defendant no.1 has already been accepted and that the parties have admitted the fact that Smt. Arnapurna Mishra had purchased the land involved in the counter claim from the plaintiff no.1 as well as defendant no.1, she is a necessary party to the counter claim. Thus, I find no infirmity in the impugned order under Annexure-3 as rightly held by learned Civil Judge (Senior Division), Athagarh.

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Accordingly, the writ petition being devoid of any merits stands dismissed.

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Interim order dated 28.11.2011 passed in Misc. Case No.15337 of 2011 stands vacated.

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Since the suit is of the year 2009, learned Civil Judge (Senior Division), Athagarh shall make an endeavour for early disposal of the suit.

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Parties are directed to cooperate with the learned trial court for the same.

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

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………………………..

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K.R. Mohapatra, J.

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Rashmirekha Mishra v. Niranjan Mishra

Case brief

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Rashmirekha Mishra v. Niranjan Mishra

Case brief

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