In an original application under Order 1 Rule 10 CPC, petitioners sought to be impleaded as parties claiming title through a non-party predecessor. This High Court dismissed the application, holding the plaintiff is not compellable to litigate against a person against whom no relief is claimed.
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IN THE HIGH COURT OF ORISSA AT CUTTACK
CMP No. 373 of 2023
Devi Gidwani and others
…. Petitioners Mr. Sangramjit Panda, Advocate
-versus-
Nimish Atha
…. Opp. Party
Mr. Umesh Chandra Patnaik, Advocate
CORAM:
JUSTICE K.R. MOHAPATRA
ORDER
Order No.
18.04.2023
Page 1 of 4
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party, as Defendant No. 7 , but the Plaintiff intentionally avoided to implead said Nandiram Gidwani as a party. As the Petitioners have right over the suit property, they are necessary parties to the suit. As such, an application under Order I Rule 10 CPC was filed to be impleaded as parties. Learned trial Court, without considering the same, rejected the Petition on the ground that the suit is of the year 1999 and t he hearing of the suit had commenced. Further, a number of opportunities were given to both the parties for amendment of plaint and filing of additional written statement from time to time. As such, it is held that no case is made out to implead the present Petitioners as parties to the suit. It is his submission that since the predecessor of the Petitioners, namely, Nandiram Gidwani purchased a part of the suit property from the rightful owner, they have interest in the same. As such, they are necessary parties to the suit. This material aspect was lost sight of learned trial Court while adjudicating the petition. Thus, the impugned order is not sustainable in the eye of law.
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“11. At the outset, it is required to be noted that the defendants in the suit filed application under Order 1 Rule 10 CPC and prayed to implead the subsequent purchasers as party defendants. The suit is for declaration, permanent injunction and recovery of possession. As per the settled position of law, the plaintiffs are the dominus (sic) litis. Unless the court suo motu directs to join any other person not party to the suit for effective decree and/or for proper adjudication as per Order 1 Rule 10 CPC, nobody can be permitted to be impleaded as defendants against the wish of the plaintiffs. Not impleading any other person as defendants against the wish of the plaintiffs shall be at the risk of the plaintiffs. Therefore, subsequent purchasers could not have been impleaded as party defendants in the application submitted by the original defendants, that too against the wish of the plaintiffs.”
In view of the above, Mr. Pattnaik, learned counsel submits that the CMP merits no consideration and is liable to be dismissed. 5. Upon hearing learned counsel for the parties and on perusal of record, it appears that the Petitioners claim right over the suit property through one Nandiram Gidwani, who was not party to the suit. It is also submitted by Mr. Panda, learned counsel for the Petitioners without impleading Nandiram Gidwani, impleaded his younger brother, Sailesh Gidwani as Defendant No.7 to the suit. At no point of time, Nandiram Gidwani raised any plea with regard to their right over the suit property. Further, in view of the ratio decided in the case of Sudhamayee Pattnaik (supra) , the Plaintiff cannot not be compelled to litigate with a person, against whom, he does not claim any relief, unless it is suo motu directed by the Court. Of course, non-impletion of a party is at the risk of the Plaintiff. In the instant case, the Plaintiff/Opposite Party vehemently objects impletion of present Petitioners as parties to the suit. Thus, invoking power under Section Order I Rule 10 CPC they should
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not be impleaded as parties to the suit, against whom the Plaintiff does not claim any relief as rightly held by learned trial Court. Hence, this Court finds no infirmity in the impugned order.
(K.R. Mohapatra) Judge
s.s.satapathy
Page 4 of 4
2 issues framed by the court
Whether purchasers through a third party who was not impleaded can be added as parties under Order I Rule 10 CPC when the plaintiff does not claim relief against them.
Whether the trial court was correct in rejecting the application to add petitioners as necessary parties given the plaintiff's objection.
Colour shows how this judgement treated each authority
Sudhamayee Pattnaik -vs- Bibhu Prasad Sahoo and othersReferred¶21
2022 SCC Online 1234 · Who else cites this
1 provisions across 1 enactments
Devi Gidwani and others
Nimish Atha
K.R. Mohapatra
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
