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2007 DIGILAW 216 (ORI)

Ashok Kumar Bharat Kar v. Jogeshwar Bharat Kar

2007-03-29

A.S.NAIDU

body2007
JUDGMENT A. S. NAIDU, J. : By order dated 8.3.2006 passed by the Civil Judge (Senior Division), Baripada in Title Suit No. 50 of 2003, a petition filed under Order 1, Rule 10 of the Code of Civil Procedure (in short ‘CPC) has been allowed. The petitioner who is the plaintiff in the said suit seeks to challenge the order invoking the jurisdiction of this Court under Articles 226 and 227 of the Constitution. 2. Bereft of unnecessary details the short facts which are necessary for appreciating the case are that the petitioner as the plaintiff filed the above suit praying for a declaration that the recording of the suit land in favour of defendant No. 2 (present opposite party No. 3) along with the plaintiff and defendant No. 1 is illegal, and for partition of the suit land and allotment of half share each in favour of the plaintiff and defendant No. 1. Defendant No. 2 is no other than the brother of the plaintiff and defendant No. 1. According to the plaintiff, out of the money which was given by his maternal uncle on the “Arnaprasanna Day” the property under dispute was purchased in the year 1962 by a registered sale deed in the names of the plaintiff and defendant No. 1. But then, inadvertently the said land has been recorded in the names of all the three brothers, i.e, the plaintiff, defendant No. 1 and defendant No. 2. Such recording, according to the plaintiff, is not correct and should be corrected. Admittedly, in the year 1962, both the plaintiff and defendant No. 1. were minors and defendant No. 2 was not born. Defendant No. 2 appeared and filed a written-statement repudiating the averments made in the plaint and took the stand that the parents of his father and so also the father of the plaintiff and defendant No. 1 were very poor and in order to earn his bread and butter their father left for Calcutta and served there in a watch repairing shop. After a few years, he returned to Baripada and opened his own shop. He was staying in a rented house. He became a very popular watch mechanic and was able to earn a handsome amount from the shop. Out of his earning, he purchased the suit land with a house standing thereon in the year 1962 and took possession of the same. He was staying in a rented house. He became a very popular watch mechanic and was able to earn a handsome amount from the shop. Out of his earning, he purchased the suit land with a house standing thereon in the year 1962 and took possession of the same. However, he was afraid that his other brothers might raise a claim with regard to the said property and that was why he choose to purchase the property in the names of his two sons, i.e. the plaintiff and defendant No. 1, who were minors then. The allegation that the property was purchased from out of the money paid on the “Arnaprasanna Day” was stoutly denied. On the other hand, it was specifically averred in the written-statement that though the property was purchased in the names of the plaintiff and defendant No. 1 when they were minors, in fact the said property exclusively belongs to the father and all the three sons are entitled to the same, of course after his demise. 3. While the matter stood thus, a petition was filed by the father under Order 1, Rule 10 of CPC with a prayer to implead him as a party to the suit mainly on the ground that his presence would be very much necessary for effectual adjudication of the dispute and that he being a necessary party should be impleaded for efficacious and complete adjudication of the dispute. The plaintiff resisted the said petition on the ground that the property not being a species of ancestral property, the presence of the father is not necessary. It was further submitted that admittedly, the property has been purchased in the name of the plaintiff and defendant No. 1 and has been wrongly recorded in the names of the three brothers, i.e. the plaintiff, defendant No. 1 and defendant No. 2 in the Record-of-right and the suit is for correcting the Record-of-rights. Thus, the father has abso¬lutely no role to play and he is neither a necessary nor a proper party and impleading him would enlarge the scope of the litiga¬tion. 4. Mr. S. P. Mishra, learned counsel for the petitioner, submits that in view of the Benami Transactions (Prohibition) Act, 1988, the plea that the father purchased the property benami in the names of his two sons being the plaintiff and defendant No. 1 cannot be accepted. 4. Mr. S. P. Mishra, learned counsel for the petitioner, submits that in view of the Benami Transactions (Prohibition) Act, 1988, the plea that the father purchased the property benami in the names of his two sons being the plaintiff and defendant No. 1 cannot be accepted. It appears that the father who had filed the petition under Order 1, Rule 10 of the CPC filed a rejoinder to the objection filed and started that in an earlier suit, being T.S.No. 71 of 1991, he took the plea that he was the real purchaser of the suit land and that he being the ostensible owner had a right to be heard. In support of such statement, some documents like depositions in Title Suit No. 71 of 1991, judgment and other materials were produced. Relying upon all these docu¬ments, the Trial Court coming to the conclusion that presence of the other intervenor would be necessary for effectual adjudica¬tion of the suit allowed the petition filed under Order 1, Rule 10 of the CPC and directed to include him as a party. 5. I have heard the learned counsel for the parties at length and perused the materials. Law is well settled that while dealing with a petition under Order 1, Rule 10 of the CPC, merits of the case is not to be considered. It is also well settled that a person who has direct interest in the subject-matter of a litigation can be impleaded as a party. The expression “direct interest” means and connotes “interest or knowledge in issues to be decided in the suit”. A person who is interested in the questions involved in the suit and decision in the suit may affect his rights, must be deemed to be one who has direct interest in the suit. No doubt, nature of each suit would decide the question as to whether a person who is not a party to the suit can be added as a party. When the questions raised by the parties in the pleadings involve a third party and the decision in the suit may affect his rights, he can be impleaded as a party to the suit for effectual adjudication of the suit. The power of a Court under Order 1, Rule 10 of the CPC is discretionary. When the questions raised by the parties in the pleadings involve a third party and the decision in the suit may affect his rights, he can be impleaded as a party to the suit for effectual adjudication of the suit. The power of a Court under Order 1, Rule 10 of the CPC is discretionary. It is not necessary that a person should be interested in all the reliefs sought by the plaintiff or that his presence is necessary for adjudication of the plaintiff’s case only. Law empowers the Court to implead a person even when his presence is necessary for considering the case of the parties or to adjudicate the inter se disputes. It is well settled that the doctrine of dominos litis is subject to the power of the Court under Order 1, Rule 10 of the CPC. The Court is primarily concerned with the question as to whether the presence of the person sought to be impleaded as a party would be necessary for complete and satisfactory adjudicat¬ing of the dispute. If it considers that the presence of such a person is essential or desirable in the interest of justice, it may direct impletion. 6. Considering the present case in the touch-stone of the aforesaid legal principle, this Court feels that the specific defence case that the land in question was purchased in the year 1962 by the father of the plaintiff and defendant No. 1 in their names when they were minors vis-a-vis the plea of the plaintiff that the disputed land was purchased from out of the money given on his “Arnaprasanna Day” can only be effectually adjudicated in the presence of the father. The submission that under the Benami Transactions (Prohibition) Act, 1988 the defendants cannot take a plea that the land in question was purchased in the names of the plaintiff and defendant No. 1, and their father was the ostensible owner, cannot be accepted as the transaction in ques¬tion took place in the year 1962. This aspect can also be dealt with in the suit itself and this Court does not want to express any opinion thereon. 7. This aspect can also be dealt with in the suit itself and this Court does not want to express any opinion thereon. 7. After going through the impugned order and considering the facts and circumstances of the present case, this Court finds that the Trial Court has rightly allowed the petition under Order 1, Rule 10 of the CPC and the impugned order does not suffer from any illegality or infirmity. The impugned order is otherwise also not perverse so as to call for an interference of this Court. 8. The Writ application is accordingly dismissed. No costs. Application dismissed.