Tapan Kumar Pandit Vs State of Odisha

2. Respondent No.11, who is the LR of original Respondent No.9, filed a petition before the first appellate court invoking the provisions under Order 1 Rule 10, C.P.C. with a prayer to add him as one of the Appellants along with the existing Appellants. Said prayer of Respondent No.11 having been rejected vide the impugned order dated 07.03.2025 (Annexure-1) by the learned Additional District Judge, Champua in RFA No.335/139/66 of 1983-2022, the same is the subject matter of challenge in present C.M.P.

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3. Original Respondent No.1 (now deceased) before the first appellate court, filed the suit praying for declaration of right, title and interest over the suit property along with the prayer to restrain the State-Opposite Parties from proceeding in the certificate cases initiated against his vendor pursuant to the auction sale made by the court. The vendor of the original Plaintiff was the owner of the suit property which was put to auction sale on 28^th June 1974. The original Respondent No.9 was the auction purchaser. The suit was decreed in favour of the Plaintiffs, which was challenged in RFA No.335/139/66 of 1983-2022 before the first appellate court by the State-Defendants. When the State has preferred the first appeal, admittedly Respondent No.9 did not choose to file any appeal against the decree of the learned

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C.M.P. No.438 of 2025

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Signature Not Verified

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Digitally Signed Signed by: BASANTA KUMAR BARIK Reason: Authentication Location: High Court of Orissa, C utta ck Date: 11-Sep-2025 10:40:31

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trial court despite the fact that he was arrayed as Respondent No.9 in the first appeal.

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4. When the first appeal was ripe for hearing, at such belated stage, the petition dated 13^th February 2025 was filed by the substituted Respondent No.11, who is the son of the auction purchaser and was impleaded in the appeal after death of the original purchaser, to transpose him as one of the Appellants in exercise of power under Order 1 Rule 10, C.P.C.

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5. Learned first appellate court having considered the prayer of Respondent No.11 and the objections raised by the Appellants as well as other Respondents rejected such prayer of Respondent No.11 mainly on the ground that the present State-Appellants are taking enough interest to protect the auction purchaser also and no such circumstances has been demonstrated before the court that the Appellants are not properly prosecuting the appeal. The learned first appellate court has further held that, it is open for Respondent No.11 to argue and place his grounds in support of the Appellants stand.

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Digitally Signed Signed by: BASANTA KUMAR BARIK Reason: Authentication Location: High Court of Orissa, C utta ck Date: 11-Sep-2025 10:40:31

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6. Mr. A.P. Bose, learned counsel for the Petitioner (Respondent No.11) submits that, after his substitution in the appeal, he by observing the circumstances and the conduct of State-Appellants, particularly not showing interest to substitute him as the LR of original Respondent No.9 and the conduct of the State-Appellants before the revenue court for setting aside the illegal recording of name of the Plaintiffs in revenue records, is compelled to proceed with the prayer to add him as one of the Appellants in order to protect his right as the State-Appellants are found lacking in prosecuting the appeal properly.

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7. Conversely, Mr. Soumya Mishra, learned counsel for the other Respondents in the appeal, who are LRs of the original Plaintiff, submits that there is at all no necessity on the part of Respondent No.11 to contest the appeal as one of the Appellants since his right is restricted only to the extent that he is the beneficiary of the auction purchase. According to Mr. Mishra, the question in dispute is the validity of auction sale and consequent certificate proceedings. If the auction sale would be held as invalid then Respondent No.11 would have no right in the suit property and so far as the claim of possession by him is concerned, it is a disputed question of fact. The circumstances as narrated by Respondent No.11 against the State- C.M.P. No.438 of 2025 Page 4 of 11

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Digitally Signed Signed by: BASANTA KUMAR BARIK Reason: Authentication Location: High Court of Orissa, C utta ck Date: 11-Sep-2025 10:40:31

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Appellants that they are not prosecuting the appeal diligently is not at all correct.

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8. Mr. T.K. Dash, learned Additional Government Advocate for the

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State-Opposite Parties 1 to 3 submits his objection that Respondent No.11 has no independent right to be the Appellant as the State has to justify its action for auction sale of the suit property.

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9. The question of transposition or addition as a party, in the instant case as one of the Appellants, is well within the jurisdiction of the appellate court in terms of the provisions contained in Orde 1 Rule 10, C.P.C. read with Section 107 thereof.

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10. The Hon’ble Supreme Court in the case of R. Dhanasundari alias R. Rajeswari vs. A.N. Umakanth and others, (2020) 14 SCC 1 while dealing with the question of necessity of transposition of Defendant as Plaintiff have held as follows:-

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“8. The law of procedure relating to the parties to a civil suit is essentially contained in Order 1 of the Code of Civil Procedure, dealing with various aspects concerning joinder, non-joinder and misjoinder of parties. Rule 10 of Order 1 specifically provides for addition, deletion and substitution of parties; and the proposition for transposition of a party from one status to another, by its very

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Digitally Signed Signed by: BASANTA KUMAR BARIK Reason: Authentication Location: High Court of Orissa, C utta ck Date: 11-Sep-2025 10:40:31

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nature, inheres in sub-rule (2) of Order 1 Rule 10 CPC that reads as under:

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“ 10. (2) Court may strike out or add parties .—The Court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the Court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit be added.”

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9. On the other hand, the law of procedure in relation to withdrawal and adjustment of suits is contained in Order 23 of the Code of Civil Procedure. As per Rule 1 thereof, a plaintiff may seek permission for withdrawal of suit or abandonment of a part of claim. Rule 1-A thereof [Inserted by the Amendment Act No. 104 of 1976.] deals with an eventuality where the plaintiff withdraws his suit or abandons his claim but a pro forma defendant has a substantial question to be decided against the codefendant. This Rule 1-A of Order 23 CPC reads as under:

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“ 23. (1-A) When transposition of defendants as plaintiffs may be permitted .—Where a suit is withdrawn or abandoned by a plaintiff under Rule 1, and a defendant applies to be transposed as a plaintiff under Rule 10 of Order 1, the Court, shall, in considering such application, have due regard to the question whether the applicant has a substantial question to be decided as against any of the other defendants.”

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Digitally Signed Signed by: BASANTA KUMAR BARIK Reason: Authentication Location: High Court of Orissa, C utta ck Date: 11-Sep-2025 10:40:31

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10. It remains trite that the object of Order 1 Rule 10 CPC is essentially to bring on record all the persons who are parties to the dispute relating to the subject-matter of the suit so that the dispute may be determined in their presence and the multiplicity of proceedings could be avoided. This Court explained the principles, albeit in a different context, in Anil Kumar Singh v. Shivnath Mishra [ Anil Kumar Singh v. Shivnath Mishra , (1995) 3 SCC 147] in the following : (SCC p. 150, para 7)

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“ 7 . … The object of the rule is to bring on record all the persons who are parties to the dispute relating to the subject-matter so that the dispute may be determined in their presence at the same time without any protraction, inconvenience and to avoid multiplicity of proceedings.”

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11. As per Rule 1-A ibid., in the eventuality of plaintiff withdrawing the suit or abandoning his claim, a pro forma defendant, who has a substantial question to be decided against the co-defendant, is entitled to seek his transposition as plaintiff for determination of such a question against the said co-defendant in the given suit itself. The very nature of the provisions contained in Rule 1-A ibid. leaves nothing to doubt that the powers of the Court to grant such a prayer for transposition are very wide and could be exercised for effectual and comprehensive adjudication of all the matters in controversy in the suit. The basic requirement for exercise of powers under Rule 1-A ibid. would be to examine if the plaintiff is seeking to withdraw or to abandon his claim under Rule 1 of Order 23 and the defendant seeking transposition is having an interest in the subject-matter of the suit and thereby, a substantial question to be adjudicated against the other defendant. In such a situation, the pro forma defendant is to be allowed to continue with the same suit as plaintiff, thereby

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Digitally Signed Signed by: BASANTA KUMAR BARIK Reason: Authentication Location: High Court of Orissa, C utta ck Date: 11-Sep-2025 10:40:31

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averting the likelihood of his right being defeated and also obviating the unnecessary multiplicity of proceedings.”

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11. In the case at hand, it is not that the Appellants have abandoned

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their claim in the appeal detrimental to the interest of Respondent No.11. The contention of Respondent No.11 is to the effect that the Appellants, who are the State authorities, are not properly prosecuting the cause of appeal which would be detrimental to the interest of Respondent No.11. To demonstrate the same, it is stated by Respondent No.11 that the State authorities are completely inactive in correcting the revenue records where the Plaintiff has managed to record his name for which Respondent No.11 have to approach the higher authority and pursuant to his approach only recording of the name of the Plaintiff in revenue records has been revived and now

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pending adjudication before the court of the Commissioner of Consolidation and Settlement, Sambalpur. Similarly, the StateAppellants have failed to substitute Respondent No.11 (present Petitioner), before the first appellate court after death of Respondent No.9 pending appeal. It is also the contention of Respondent No.11 that unless he is added as one of the Appellants, there would be a limit to

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Digitally Signed Signed by: BASANTA KUMAR BARIK Reason: Authentication Location: High Court of Orissa, C utta ck Date: 11-Sep-2025 10:40:31

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his challenge to the decree in the capacity of co-Respondent which may cause prejudice his interest.

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12. At this stage, as seen from the given facts of the case, Respondent No.11 has though been arrayed as a party in the suit as well as in the first appeal through Respondent No.9, but he did not put any effort to challenge the decree either by filing independent appeal or cross-appeal in addition to the grounds of challenge made by the StateAppellants in the present appeal. This being so, at this stage, the justification given by Respondent No.11 to be impleaded as one of the Plaintiffs would show that that the conduct of the State-Appellants in the manner conducting the appeal would detriment to his interest in the

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suit property. Admittedly Respondent No.11 being the auction purchaser of the suit property through his father has gained the substantial right in his favour to object the decree. However, he did not exercise his right in time despite having knowledge of the decree and being arrayed as one of the parties in the appeal. Though he has lost his opportunity to challenge the decree of the learned trial court directly, but the justification given by him at this stage doubting conduct of the State-Appellants in prosecuting the appeal against the LRs of the Plaintiff cannot be said unjustified. The LRs of the Plaintiff, who are C.M.P. No.438 of 2025 Page 9 of 11

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Digitally Signed Signed by: BASANTA KUMAR BARIK Reason: Authentication Location: High Court of Orissa, C utta ck Date: 11-Sep-2025 10:40:31

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the other Respondents in the appeal, do not agree to such demonstration of conduct of State-Appellants as stated by Respondent No.11, and according to them they have preferred W.A. No. 2385 of 2024 against the order of the Single Judge passed in W.P.(C) No. 34582 of 2023.

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13. On the other hand, it is seen that if Respondent No.11 will be added as one of the Appellants at this stage, there would be no harm caused to other Respondents and it also remains undisputed that further time will not be consumed by the process. But it is stated by Mr. Mishra, learned counsel for the other Respondents (Opposite Parties 4 to 12) that, what Respondent No.11 did not do directly cannot be permitted to do indirectly after losing the opportunity. It is true in the sense that Respondent No.11 did not prefer appeal against the decree of the learned trial court in time nor did choose to prefer any cross-appeal. But the explanation submitted on his part that after observing the conduct of the State-Appellants at the later stage particularly before the revenue court and in the matter of substitution upon death of his father, he has doubt over proper prosecution of the appeal by the StateAppellants due to their conduct, is seen justified.

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Digitally Signed Signed by: BASANTA KUMAR BARIK Reason: Authentication Location: High Court of Orissa, C utta ck Date: 11-Sep-2025 10:40:31

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14. In the circumstances, considering the fact that Respondent No.11

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has a substantial right in respect of the suit property and there would not be any harm caused to any party in the event he is added as one of the Appellants, this Court finds merit in the contention of the Petitioner to interfere with the impugned order. Accordingly, the impugned order dated 07.03.2025 (Annexure-1) of learned Additional District Judge, Champua passed in RFA No.335/139/66 of 1983-2022 is set aside.

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15. In the result, the C.M.P. is allowed and the present Petitioner, who is Respondent No.11 before the first appellate court, is permitted to be added as one of the Appellants along with the State-Respondents to prosecute the cause of appeal in his favour.

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16. Since the appeal is ready for hearing, the first appellate court

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shall do well to dispose of the appeal as soon as possible preferably within a period of three months from the date of receipt of a certified copy of this order.

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B.K. Barik/Secretary

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Tapan Kumar Pandit v. State of Odisha

Case brief

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Tapan Kumar Pandit v. State of Odisha

Case brief

What is this about?

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