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2010 DIGILAW 219 (ORI)

Naresh Kumar Jain v. Gobindaram Choudhury

2010-03-26

SANJU PANDA

body2010
JUDGMENT S. PANDA, J. : This case was listed for fresh admission on 18.3.2010. Opposite party No.1 who is the plaintiff has appeared through Mr. S.S. Das, learned counsel by filing Vakalatanama in Court today. On consent of learned counsel for the parties, the matter was heard and the order was reserved. 2. The petitioner has filed this writ petition challenging the order dated 10.2.2009 passed by the learned Civil Judge (Senior Division), 1st Court, Cuttack in Civil Suit (I) No.124 of 2008 rejecting the application of the petitioner to implead him as a party to the suit. 3. From the record, it appears that present opposite party No.1 plaintiff has filed Civil Suit (I) No.124 of 2008 impleading Orissa State Financial Corporation (in short, “OSFC”) represented by its Managing Director, Joint General Manager Recovery and Deputy General Manager as defendants seeking declaration of his right, title and interest and a direction for delivery of posses¬sion and execution of sale deed in favour of the plaintiff over the suit schedule property, permanent injunction restraining the defendants from selling the suit property to any other person and inviting any tender to sale the suit property, delivery of pos¬session of the part of the Industrial Unit M/s. Biraja Roller Flour Mills Ltd. situated on Ac.0.16 decs. of land out of Ac.0.76 decs. in Plot No.717(P) in Khata No.457(6) under Mouza-Kotasahi PS-Tangi, Dist, Cuttack. He further pleaded in the plaint that M/s. Biraja Roller Flour Mills Ltd. was established over an area measuring an area of Ac.0.76 decs. in Plot No.717 under Khata No.457/6. The said plot originally belonged to one Gandharba Rout. The present petitioner purchased the said land on 15.7.1986 by a registered sale deed and leased out the entire land in favour of M/s. Jain Roller Flour Mills who established the indus¬trial unit after taking loan from the OSFC i.e. defendant No.1 by mortgaging the land. Since M/s. Jain Roller Flour Mills did not pay the loan amount, the unit was seized. For realization of the loan amount, tender notice was published for selling the unit. In pursuance of the said notice, M/s. Biraja Roller Flour Mills Ltd. purchased the unit from the OSFC. Said M/s. Biraja Roller Flour Mills Ltd. also obtained loan from the OSFC and due to non-payment of the same, the unit was seized again. For realization of the loan amount, tender notice was published for selling the unit. In pursuance of the said notice, M/s. Biraja Roller Flour Mills Ltd. purchased the unit from the OSFC. Said M/s. Biraja Roller Flour Mills Ltd. also obtained loan from the OSFC and due to non-payment of the same, the unit was seized again. The sale notice was published on 21.3.2007 and corrigendum was published on 23.3.2007. In the said notice, it was indicated that the details of the assets were available in the website www.osfc.india.com. As per the said website, the description of the property is “Mouza-Kotasahi, Khata No.153, Plot No.717, Ac.0.76 decimals”. Opposite party No.1 offered the price of Rs.47,50,000/- for the entire industrial unit. On further negoti¬ation, the OSFC accepted the plaintiff’s offer on 24.4.2007 and asked him to deposit the full consideration amount and intimated that after depositing the full amount, possession would be handed over to him. Thereafter, on 28.4.2007 opposite party No.1 request¬ed the OSFC to confirm the sale and hand over the possession. On 7.5.2007, opposite Party No.4 replied that the demarcation of land would be made after receipt of full and final payment from the purchaser and at the time of handing over possession of the unit. Accordingly, he paid the entire amount. On 19.5.2007, opposite party No.4 issued a letter to the Officer-in-charge, Tangi Police Station to provide adequate police assistance for handing over possession of the unit to opposite party No.1. In the said letter, it was indicated that it was proposed to hand over the Unit to opposite party No.1 on 21.5.2007 but due to absence of opposite party No.4 the possession could not be handed over. On 22.5.2007 another letter was issued to the Sub-Collec¬tor, Cuttack Sadar to depute the Executive Magistrate on 26.5.2007 for demarcation and handing over possession of the unit. However, finally on 24.7.2007 opposite party No.4 intimated opposite party No.1 that the OSFC was not able to deliver the entire extent of land i.e. Ac.0.76 decs. as per the sale notice since a number of litigations had cropped up. Opposite party No.4 was prepared to refund the cost of Ac.0.15.3 decimals of land and evaluated the valuation of the said land at Rs.1,24,000/-. Chal¬lenging the said order, plaintiff-opposite party No.1 filed WP(C) No.9274 of 2007. as per the sale notice since a number of litigations had cropped up. Opposite party No.4 was prepared to refund the cost of Ac.0.15.3 decimals of land and evaluated the valuation of the said land at Rs.1,24,000/-. Chal¬lenging the said order, plaintiff-opposite party No.1 filed WP(C) No.9274 of 2007. During pendency of the said writ petition, in pursuance of the FIR dated 3.8.2007 lodged by opposite party No.4, the police evicted the trespassers and the OSFC took peace¬ful possession of the entire unit consisting of Ac.0.76 decimals of land. On 28.9.2007, he handed over a part of the industrial unit situated on Ac.0.60 decs. out of the total area of Ac.0.76 decs. with an assurance to hand over the rest portion of the unit on the next date i.e. on 29.9.2007. A sale memo of movable and tangible assets were also signed without providing any schedule of assets. As the OSFC did not hand over the entire unit, i.e., the rest portion of the industrial unit situated on Ac.0.16 decs. of land, opposite party No.1- plaintiff has filed the suit against the OPSC. 4. The present petitioner has filed Civil Suit No.208 of 2007 prior to the suit of opposite party No.1 impleading OSFC, M/s. Jain Roller Flour Mills Pvt. Limited and the present oppo¬site party No.1 as defendants seeking a declaration of his right, title and interest in respect of the suit property measuring an area of Ac.0.16 decs. out of Ac.0.76 decs. and permanent injunc¬tion restraining the defendants from coming upon the suit proper¬ty and creating any disturbance in the peaceful possession of the plaintiff petitioner over the same. In the said suit, he moved an application under Section 10 of the Civil Procedure Code to stay the further proceeding of the subsequent suit i.e. Civil Suit (I) No.124 of 2008. His application was rejected. Against the said rejection, he filed WP(C) No.15792 of 2009 which was also dis¬missed by this Court on 3.3.2010 observing that when both the suits had been ordered to be heard analogously, there was no likelihood of giving rise to conflicting decisions. 5. In the meantime the petitioner filed an application under Order 1 Rule 10 of the Civil Procedure Code to implead himself as a party to the Civil Suit (I) No.124 of 2008. 5. In the meantime the petitioner filed an application under Order 1 Rule 10 of the Civil Procedure Code to implead himself as a party to the Civil Suit (I) No.124 of 2008. The trial Court rejected the said application by the impugned order dated 10.2.2009 as he was not a necessary party to the suit and no way he would be prejudiced. 6. Learned counsel appearing for the petitioner submitted that since the disputed property is same and he is a necessary party to the said suit, the Court below should have allowed him to be impleaded as a party to Civil Suit No.124 of 2008. In support of his contention, he cited a decision of this Court in the case of Indrajit Dandasena and others v. Mangal Charan Danda¬sena and others reported in 57(1984) CLT 31 wherein this Court has held that Order 1 Rule 10 of the Code intends to avoid multi¬plicity of suit and the rule authorizes the Court to add a party even for the purpose of final determination of the questions involved in the suit as between a party on the record and the party sought to be added. The maxim of “dominus litis” which means that the plaintiff is the master of suit and he cannot be compelled to fight against a person against whom he does not claim any relief. 7. Learned counsel appearing for the opposite parties, however, submitted that the present petitioner is neither a necessary party nor a proper party to the suit filed by him as a plaintiff since he has not sought any relief against the present petitioner. In support of his contention, he cited the decision of this Court in the case of Gopal Krushna Badu Mohapatra and others v. Girish Chandra Nayak and others reported in 1999(I) OLR 582 wherein this Court has held that purpose of Order 1 Rule 10 of the Civil Procedure Code is not to change the scope and char¬acter of the suit. 8. In view of the above submissions of the parties, the maxim “dominus litis” is subject to the power of the Court under Order 1 Rule 10 of the Civil Procedure Code which is a discretionary power. The Court has to consider whether a person will be impleaded as a party to the suit or not; it does not depend merely on the wish of the plaintiff. 9. The Court has to consider whether a person will be impleaded as a party to the suit or not; it does not depend merely on the wish of the plaintiff. 9. Since the present petitioner has already filed the suit and his right would be determined in his suit and he has implead¬ed the present opposite parties as defendants, he will not be affected in any way if he is not impleaded as a party to the subsequent suit i.e. Civil Suit No.124 of 2008. The present petitioner’s suit is the earlier suit and order has already been passed by the Court below for analogous hearing of the two suits as in both the suits the subject matter is same, some of the evidence between the parties are same and some of the parties are same. In such a situation, the trial Court rightly rejected the application of the petitioner to implead him as a party to the subsequent suit. 10. The intention of Order 1 Rule 10 of the Civil Procedure Code is to implead a party in a suit if his presence is necessary for adjudication of the dispute or if he is a proper party and his presence is necessary in furtherance of interest of justice. Where the scope of the suit would be enlarged which is not neces¬sary for adjudication to consider the question of relief in the suit, a party may not be necessary to be added. Reference in this connection may be made to the decision of this Court in the case of Sadhu Behera and others v. Krishna Chandra Sutar and another reported in 1985 (I) OLR 38 wherein this Court has held that in a suit for specific performance of contract for sale, a stranger to the contract who was contending that the contracted property was a joint family property of which he was also the co-owner would not entitle him to be added as a party. In such a situa¬tion, when there was no prayer for recovery of possession in the suit if third party were added, it would enlarge the scope of the suit and the suit would be turned into a suit for tile. 11. In such a situa¬tion, when there was no prayer for recovery of possession in the suit if third party were added, it would enlarge the scope of the suit and the suit would be turned into a suit for tile. 11. In view of the above settled position of law and as the present petitioner has already filed Civil Suit No.208 of 2007 against the opposite parties in order to decide the claim set up by him, this Court is not inclined to interfere with the im¬pugned order dated 10.2.2009 passed by the learned Civil Judge (Senior Division), 1st Court, Cuttack in Civil Suit (I) No.124 of 2008. Accordingly, the writ petition is dismissed. Appeal dismissed.