Chhabita Martha Vs Ashoka Rout

Signature Not Verified

Digitally Signed Signed by: ROJALIN NAYAK Designation: JUNIOR STENOGRAPHER Reason: Authentication Location: HIGH COURT OF ORISSA, C UTT ACK Date: 07-May-2024 10:53:29

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IN THE HIGH COURT OF ORISSA AT CUTTACK

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CMP NO.287 OF 2024 Chhabita Martha and another

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…. Petitioner

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Mr. Pradipta Kumar Mohanty, Senior Advocate being assisted by Mr. Pronoy Mohanty, Advocate

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-versus-

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Ashoka Rout and others …. Opp. Parties Mr. Rajeet Roy, Advocate (Caveator)

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CORAM: JUSTICE K.R. MOHAPATRA

Order No.

ORDER 01.05.2024

This matter is taken up through hybrid mode.

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Order dated 30^th January, 2024 (Annexure-7) passed in CS No.415 of 2020 is under challenge in this CMP, whereby learned Civil Judge, (Senior Division), Bhubaneswar rejected an application filed by the Petitioners under Order I Rule 10 CPC to be impleaded as parties to the suit.

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Mr. Mohanty, learned Senior Advocate appearing for the Petitioners submits that the suit has been filed by the PlaintiffsOpposite Party Nos.1 to 3 for eviction of the Defendant-Proforma Opposite Party No.4. The factual backdrop of the case is that the recorded tenant executed a General Power of Attorney (GPA) in favour of two persons, namely, Sri. Prafulla Mohapatra and Sri. Manoranjan Bhol for development and alienation of the suit property. Accordingly, the Power of Attorney holders executed an agreement for sale in favour of the Petitioners and delivered the possession of the property to them. When the matter stood thus, the Power of Attorney was cancelled by the recorded tenants.

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Signature Not Verified

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Digitally Signed Signed by: ROJALIN NAYAK Designation: JUNIOR STENOGRAPHER Reason: Authentication Location: HIGH COURT OF ORISSA, C UTT ACK Date: 07-May-2024 10:53:29

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Accordingly, the Petitioners have filed the suit, i.e., CS No.2134 of 2019, which is pending in the same Court for specific performance of contract and other consequential and ancillary reliefs. In the meantime, the recorded tenants alienated the property in favour of Plaintiffs-Opposite Party Nos.1 to 3 who filed the suit, i.e., CS No.415 of 2020 for eviction of the Defendant-Opposite Party No.4 who is a tenant under the Plaintiffs-Opposite Party Nos.1 to 3. Since CS No.2134 of 2019 filed by the Petitioners is for specific performance of contract in respect of the self same property, which is pending for consideration, the Petitioners filed an application in the present suit for being impleaded as parties to the suit. The said application has been rejected on the ground that the suit is for eviction of the tenant. Thus, the burden is on the PlaintiffsOpposite Party Nos.1 to 3 to prove that they are entitled to the relief claimed. If they fail to establish their case, the suit would fail. Presence of the Petitioners is not necessary for passing a decree in the said suit. It was further held that for effective for adjudication of the suit, presence of the Petitioners is not necessary and the suit would not render infructuous if the Petitioners are not made parties.

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Mr. Mohanty, learned Senior Advocate further submits that since the properties in both the suits are same and parties to the present suit have been arrayed as Defendants in CS No. 2134 of 2019, there is every likelihood that an application either for analogous hearing or under Section 10 CPC may be filed by any of the parties. In such event, unless the Petitioners are made parties to the present suit, they would not be in a position to assert their right in the petition to be filed. He further submits that there

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Signature Not Verified

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Digitally Signed Signed by: ROJALIN NAYAK Designation: JUNIOR STENOGRAPHER Reason: Authentication Location: HIGH COURT OF ORISSA, C UTT ACK Date: 07-May-2024 10:53:29

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being an agreement for sale in favour of the Petitioners, they have acquired interest over the suit property. As such, they are proper parties to the suit. Learned trial Court, while adjudicating the matter, failed to appreciate the same and dismissed the petition. He, therefore, prays for setting aside the impugned order under Annexure-7 and to direct learned trial Court to implead them as parties to the suit.

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Mr. Roy, learned counsel for the Plaintiffs-Opposite Party Nos.1 to 3 vehemently objects to the same. It is his submission that the suit has been filed by them for eviction-simplicitor against the Defendant-Proforma Opposite Party No.4, who is a tenant under them. Thus, the Petitioners, who claimed right over the suit property on the basis of unregistered agreement for sale have no semblance of right over the suit property as yet. As such, they are neither necessary nor proper parties to the suit. He also submits that the Plaintiffs are dominus litis and they should choose their opponent to fight out the suit. They cannot be compelled to implead a party to the suit against whom they do not claim any relief. In support of his submission, he relied upon the case of Sudhamayee Pattnaik and others vrs. Bibhu Prasad Sahoo and others, reported in 2022 SCC Online SC 1234 . He, therefore, submits that learned trial Court has committed no error in dismissing the petition under Order I Rule 10 CPC.

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Taking note of the submission made by learned counsel for the parties and on perusal of the record, it is apparent that CS No.415 of 2020 has been filed for eviction-simplicitor against the Proforma-Opposite Party No.4 who is a tenant. Thus, burden is on the Plaintiffs to prove that the Defendant-Proforma Opposite

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Signature Not Verified

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Digitally Signed Signed by: ROJALIN NAYAK Designation: JUNIOR STENOGRAPHER Reason: Authentication Location: HIGH COURT OF ORISSA, C UTT ACK Date: 07-May-2024 10:53:29

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Party No.4 is liable to be evicted from the suit property. In one hand, the Petitioners claim right over the properties through an unregistered agreement for sale executed by the Power of Attorney holders, the Opposite Party Nos.1 to 3 on the other hand, claim title over the property by virtue of a registered sale deed by recorded tenant. The right of the present Petitioners over the suit property is yet to be decided and the said suit is pending for consideration in CS No.2134 of 2019, wherein they have claimed for specific performance of contract and for other consequential and ancillary reliefs.

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The subject matter of dispute involved in the present suit, i.e., CS No.415 of 2020 is for eviction of the sole DefendantProforma Opposite Party No.4. The presence of the Petitioners is not required for adjudication of the suit, as the Plaintiffs-Opposite Party Nos.1 to 3 claiming the Defendant to be a tenant under them pray for his eviction. As laid down in Sudhamayee Pattnaik (supra), the Plaintiffs, being the dominus litis, cannot be compelled to litigate with a person against whom they do not claim any relief. Of course, non-impletion of the parties is at the risk of the Plaintiffs. It is also held therein that the Court has the power to implead a party suo motu for proper adjudication of the case. In the instant case, no such power is being exercised by learned trial Court.

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At this stage, Mr. Roy, learned counsel for the Opposite Party Nos.1 to 3 submits that trial of the suit has already commenced. Taking into consideration his submission and nature of dispute involved, learned trial Court should make an endeavour for early disposal of the same, if there is no legal impediment.

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Signature Not Verified

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Digitally Signed Signed by: ROJALIN NAYAK Designation: JUNIOR STENOGRAPHER Reason: Authentication Location: HIGH COURT OF ORISSA, C UTT ACK Date: 07-May-2024 10:53:29

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In that view of the matter, this Court is of the considered opinion that learned trial Court has committed no error in dismissing the petition filed under Order I Rule 10 CPC for impletion of the Petitioners as parties to the suit.

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

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Dismissal of this CMP shall not be a bar for the Petitioners to file appropriate application before learned trial Court, if any cause of action for the same arises in future.

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

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(K.R. Mohapatra) Judge

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Rojalin

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Chhabita Martha v. Ashoka Rout

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Chhabita Martha v. Ashoka Rout

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