Sudhamayee Pattnaik vs Bibhu Prasad Sahoo

Sudhamayee Pattnaik and Others …Appellants

Versus

Bibhu Prasad Sahoo and Others …Respondents

JUDGMENT

M.R. SHAH, J.

1. Feeling aggrieved and dissatisfied with the impugned judgment

and order dated 28.03.2022 passed by the High Court of Orissa at

Cuttack in CMP No. 258/2019, by which the High Court has dismissed

the said writ petition preferred by the appellants herein – original

plaintiffs and has confirmed the order passed by the trial Court allowing

application under Order 1 Rule 10 CPC preferred by original defendant Signature Not Verified Digitally signed by SNEHA Date: 2022.09.16 15:18:33 IST Reason: Nos. 1 to 4 and thereby directing to implead the subsequent purchasers

1 as defendants in the suit instituted by the original plaintiffs, the original

plaintiffs have preferred the present appeal.

2. The facts leading to the present appeal in a nutshell are as under:

That the appellants – original plaintiffs instituted Civil Suit No.

298/2011 against the original defendants for declaration, permanent

injunction and recovery of possession. In the said suit, original

defendants appeared and filed their joint written statement along with

counter-claim for declaration of their right, title and interest over the suit

property and for permanent injunction. After the evidence from the side

of the plaintiffs was closed, original defendant Nos. 1 to 4 filed an

application under Order 1 Rule 10 CPC and prayed for impleadment of

subsequent purchasers as party defendants alleging inter alia that during

the pendency of the suit, the plaintiffs have illegally and unlawfully

alienated some parcels of the disputed land in favour of one Manasi

Sahoo wife of Sanjaya Kumar Sahoo, Bharat Chandra Sahoo,

Dhaneswar Sahoo and Kedarnath Sahoo. Therefore, it was prayed to

implead the subsequent purchasers as party defendants for proper

adjudication of the suit and to avoid multiplicity of proceedings.

2.1 The said application was opposed by the plaintiffs – appellants

herein on the ground that defendant Nos. 1 to 4 have no locus standi to

file such an application. It was also the case on behalf of the original

2 plaintiffs that the plaintiffs are the dominus litis and nobody can be

permitted to join/implead as defendants against the wish of the plaintiffs.

2.2 By order dated 20.02.2019, learned Civil Judge (Sr. Division),

Khorda allowed the said application and directed to implead the

subsequent purchasers as defendants by observing that the subsequent

purchasers are the lis pendens purchasers and the lis pendens

purchasers may be added as proper parties to prevent multiplicity of

litigation.

2.3 Feeling aggrieved and dissatisfied with the order passed by the

trial Court allowing application under Order 1 Rule 10 CPC, which was

filed at the instance of original defendant Nos. 1 to 4, the plaintiffs

preferred writ petition before the High Court. By the impugned judgment

and order, the High Court has dismissed the said writ petition. Hence,

this appeal.

3. Learned counsel appearing on behalf of the appellants – original

plaintiffs has vehemently submitted that in the facts and circumstances

of the case, both, the trial Court as well as the High Court have

committed a grave error in allowing the application under Order 1 Rule

10 CPC, which was at the instance of the defendants.

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3.1 It is then submitted that the plaintiffs are the dominus litis and

nobody can be permitted to be impleaded as defendants against the

wish of the plaintiffs.

3.2 It is further submitted that the decision of this Court in the case of

Rahul S. Shah v. Jinendra Kumar Gandhi, reported in (2021) 6 SCC

418, which has been relied upon and followed by the High Court, shall

not be applicable to the facts of the case on hand.

4. On the other hand, it is the case on behalf of defendant Nos. 1 to 4

that as the part of the suit property was transferred illegally in favour of

the subsequent purchasers during the pendency of the suit, to avoid any

multiplicity of proceedings and to pass an effective decree, the trial Court

rightly allowed the application under Order 1 Rule 10 CPC and directed

to implead the subsequent purchasers as defendants. It is therefore

submitted that the High Court has not committed any error in dismissing

the writ petition.

5. We have heard learned counsel for the respective parties at

length.

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

4 the settled position of law, the plaintiffs are the domius 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.

6. Now so far as the reliance placed upon the decision of this Court in

the case of Rahul S. Shah (supra) by the High Court is concerned, on

facts, the said decision shall not be applicable to the facts of the case on

hand. The said decision was not a case of an application under Order 1

Rule 10 CPC to implead the persons not party to the suit as defendants

and that too at the instance of the defendants.

7. However, at the same time, considering the fact that defendants

have also filed counter-claim for declaration of their right, title and

interest over the suit property and permanent injunction and in case the

counter-claim is allowed, as the plaintiffs are opposing to implead the

subsequent purchasers as party defendants, thereafter it will not be

open for the plaintiffs to contend that no decree in the counter-claim be

5 passed in absence of the subsequent purchasers. Therefore, non-

impleading the subsequent purchasers as defendants on the objection

raised by the plaintiffs shall be at the risk of the plaintiffs.

8. In view of the above and for the reasons stated above and with the

aforesaid observations, the present appeal is allowed. The impugned

judgment and order passed by the High Court and that of the trial Court

allowing application under Order 1 Rule 10 CPC are hereby quashed

and set aside, however, with the observations as above.

The instant appeal is allowed in the aforesaid terms. In the facts

and circumstances of the case, there shall be no order as to costs.

………………………………J. [M.R. SHAH]

NEW DELHI; ……………………………….J. SEPTEMBER 16, 2022. [KRISHNA MURARI]

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