Jyotshnamayaee Giri Vs Subhankar Patra

Signature Not Verified

Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 07-Mar-2024 17:02:06

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IN THE HIGH COURT OF ORISSA AT CUTTACK CMP No. 135 OF 2024 Jyotshnamayee Giri …. Petitioner

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…. Petitioner

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Mr. Bikram Keshari Bal, Advocate

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-versus-

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Subhankar Patra and others

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…. Opp. Parties

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CORAM: JUSTICE K.R. MOHAPATRA

Order No.

ORDER 05.03.2024

This matter is taken up through hybrid mode.

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Order dated 22^nd November, 2023 (Annexure-1) passed in C.S. No.148 of 2017 is under challenge in this CMP, whereby learned Civil Judge (Senior Division), Salipur rejected an application filed by the Defendant No.3-Petitioner to implead the father of the minor Plaintiff as Defendant No.4 to the suit.

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Mr. Bal, learned counsel for the Petitioner submits that the suit has been filed by the Plaintiff-Opposite Party No.1, who is a minor being represented through his material uncle. The suit has been filed to declare the Registered Sale Deed No.2242 dated 5^th December, 2015 executed by the Plaintiff through his mother (Defendant No.2) in favour of the Defendant No.3Petitioner as null and void and to cancel the same along with other consequential reliefs. Defendant Nos.1 and 2 are avoiding to appear in the suit. Defendant No.3-Petitioner in her written statement has categorically stated that the sale deed was executed in presence of father of Plaintiff and he (father of Plaintiff) received the consideration amount on behalf of the minor-Plaintiff. Later on, the father of the minor-Plaintiff

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Signature Not Verified

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Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 07-Mar-2024 17:02:06

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withdrew the money from bank on behalf of the vendor (Plaintiff). Thus, he is a necessary party to the suit. The Plaintiff, represented through maternal uncle in order to harass the Defendant No.3 intentionally did not implead his father as a party to the suit. Hence, an application was filed under Order 1 Rule 10(2) CPC to implead the father of the minor Plaintiff as Defendant No.4 to the suit. Learned trial Court holding that no relief is claimed against the father of the minor and the sale deed was executed by the mother-Defendant No.2 on behalf of the minor-Plaintiff (Opposite Party No.1) held that the father of the minor is neither necessary nor proper party to the suit. It is also observed that no allegation is made by the Plaintiff against his father. Thus, the petition filed under Order 1 Rule 10(2) CPC was rejected vide impugned order under Annexure-1. Hence, this CMP has been filed.

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Considering the submission made by learned counsel for the Petitioner and on perusal of the record, it appears that the Plaintiff-Opposite Party No.1 is a minor and represented through his maternal uncle. The mother of the Plaintiff-Opposite Party No.1 has been impleaded as Defendant No.2 to the suit as she had executed the sale deed on behalf of the minor-Opposite Party No.1. No allegation against the father of the Opposite Party No.1 is made in the plaint. No relief is also claimed against him. Thus, his presence is not necessary for adjudication of the suit. Thus, he is neither a necessary nor a proper party to the suit as rightly observed by learned trial Court. Only because the allegation is made in the written statement that the father of the Opposite Party No.1 received the consideration amount and the

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Signature Not Verified

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Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 07-Mar-2024 17:02:06

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sale deed was executed in his presence and he was a witness to the execution of the sale deed, the same cannot be the grounds to implead him as a party to the suit. Thus, I find no infirmity in the impugned order under Annexure-1.

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Accordingly, the CMP being devoid of any merit stands dismissed.

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

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ms

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(K.R. Mohapatra)
Judge

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Jyotshnamayaee Giri v. Subhankar Patra

Case brief

What is this about?

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Jyotshnamayaee Giri v. Subhankar Patra

Case brief

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