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2010 DIGILAW 95 (ORI)

KHAGESWAR BISWAL v. BRAHMANANDA BISWAL

2010-02-17

S.K.MISHRA

body2010
JUDGMENT : S.K. Mishra, J. - The most important question that arises in this case for consideration is, whether the Learned Courts below have acted contrary to law in not permitting the Appellant to contest the suit as Khageswar Biswal, as according to him, he has been wrongly described as Khageswar Behera in the plaint. 2. The Plaintiff filed the suit for declaration to the effect that Defendant No. 1 described as Khageswar Behera, son of late Narendra Behera of Gobanga is the adopted son of said Narendra Behera & has no right, title or interest in the property left by late Dinabandhu Biswal. For better appreciation of the case, the Genealogy is reproduced below: I-Genealogy Dinabandhu Biswal ------------------------------------------------------------- | | | | Parameswar Maheswar Khageswar Achutananda Brahmananda W-Manika (Adopted) W-Suka | -------------------------------------- Rabi Kabi Chhabi Gandu Panchu II-Genealogy Ananda Behera ------------------------- | | Narendra Gangadhar W-Pitei Saria ------------------ | | Khageswar Hrusikesa On institution of the suit, notices were issued. It may be noted that the present Appellant was described in the cause title of the plaint as Khageswar Behera, son of late Narendra Behera. On 17.11.1994, the present Appellant appeared through Sri B. Nayak & filed a petition under Order 1, Rule 10 of the Code of Civil Procedure, 1906 (hereinafter referred as the "Code" for brevity) & prayed for adding his real name in the plaint Thereafter, the suit suffered some adjournments & on 10.05.1995, Defendant No. 1 was set ex parte & the case was posted to 08.09.1995 for objection to the petition under Order 1, Rule 10 of the Code. It is noted that though Defendant No. 1 was set ex parte, his petition was kept pending for filing objection by the Plaintiff. On 22.07.1998, the Learned Civil Judge (Junior Division) took note of the objection of the Plaintiff to that petition to the effect that the Defendant No. 1 is neither a necessary nor a proper party in the suit & hence, rejected the petition. 3. Against such an order, the present Appellant preferred a revision before the Addl. District Judge, Kendrapara, vide Civil Revision No. 46 of 1998. On 26.02.1999, the Civil Judge (Junior Division) sent the L.C.R. to the Court of Addl. District Judge. Curiously however, in absence of the case records on 14.02.2000, the Civil Judge (Junior Division) took up hearing of the case & it continued on different date. District Judge, Kendrapara, vide Civil Revision No. 46 of 1998. On 26.02.1999, the Civil Judge (Junior Division) sent the L.C.R. to the Court of Addl. District Judge. Curiously however, in absence of the case records on 14.02.2000, the Civil Judge (Junior Division) took up hearing of the case & it continued on different date. Then on 29.02.2000, the case records were received from the Court of the Addl. District Judge, Kendrapara. Thereafter, on 06.03.2000 argument was heard & on 10.03.2000 Judgment was pronounced by the Civil Judge (Junior Division) decreeing the suit of the Plaintiff. It may be noted here that the Civil Revision filed by the present Appellant was dismissed as not maintainable. 4. Against the Judgment of the original Court, the present Appellant preferred an appeal before the Addl. District Judge, Kendrapara bearing Title Appeal No. 14 of 2000. Learned Addl. District Judge though granted leave to the present Appellant to prefer appeal, the said Appellate Court did not allow the petition for additional evidence filed by the present Appellant. The Learned Appellate Court held that Order 41, Rule 27 of the Code does not envisage filling of lacuna at the late stage arising out of a deliberate negligence in part of the party. The Learned Appellate Court dismissed the appeal. Hence, the Appellant has come up with the Second Appeal. 5. The crux of the dispute between the parties is, whether the present Appellant should be allowed to contest the case describing himself as Khageswar Biswal. It is admitted by both the sides that the vital issue to the present suit is whether, Khageswar Biswal is the adopted son of Narendra Behera. The first relief that the Plaintiff seeks in this case is, whether Khageswar Biswal is declared to be the adopted son of Narendra Behera. It is admitted that Khageswar Biswal is the natural born son of Dinabandhu Biswal. The disputed question, which requires adjudication, is whether the said Khageswar Biswal is adopted by Narendra Behera. In order to decide such an issue, it is necessary to give Khageswar Biswal a proper & reasonable opportunity of hearing. Any other course will definitely disturb his personal rights & will violate the principle of natural justice. 6. The disputed question, which requires adjudication, is whether the said Khageswar Biswal is adopted by Narendra Behera. In order to decide such an issue, it is necessary to give Khageswar Biswal a proper & reasonable opportunity of hearing. Any other course will definitely disturb his personal rights & will violate the principle of natural justice. 6. Learned Counsel for the Respondents- however argued that the Plaintiff is the dominus liti, i.e. a master of the suit &, therefore, he is at liberty to array any person as Defendant as he deems just & proper. The Hon'ble Supreme Court in Dhannalal Vs. Kalawatibai and Others, (para-23) has held that even though the Plaintiff is dominus liti his prerogative can be exercised if it is not opposed to public policy or if such exercise of prerogative results in abuse of process of law. Rule 10 of Order 1 of the Code vests power in the Code, either upon or without the application of the either party, to strike out any party improperly joined in the suit & to add the name of any person, who, in the opinion of the Court, 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 & completely to adjudicate upon & settle all the questions involved in the suit. Power vested under the Rules is discretionary & it is wide. Whether a person is impleaded as a party in the suit or not does not depend merely on the wish of the Plaintiff. The doctrine of dominus litis is subject to the power of the Court under the provisions of Rule 10 of Order 1 of the Code. (Biswanath Sahu v. K. Somanath Subudhi and Ors. 32 (1990) O.J.D. 539 (Civil). 7. It is not disputed in this case by the Learned Counsel for the Respondents that Khageswar Biswal is the natural born son of Dinanbandhu Biswal & is a proper & necessary party. What is disputed is, whether he should be referred in the cause title as Khageswar Behera son of Narendra Behera or Khageswar Biswal son of Dinabandhu Biswal. Whatever name called, the Civil Court only has the jurisdiction to decide, whether Khageswar Biswal is the adopted son of Narendra Behera or he still continues to be the son of Dinabandhu Biswal. What is disputed is, whether he should be referred in the cause title as Khageswar Behera son of Narendra Behera or Khageswar Biswal son of Dinabandhu Biswal. Whatever name called, the Civil Court only has the jurisdiction to decide, whether Khageswar Biswal is the adopted son of Narendra Behera or he still continues to be the son of Dinabandhu Biswal. By denying an opportunity to the said Khageswar for putting forth his case by filing his written statement & leading all such evidence as may be necessary to prove his case, there is a gross violation of the rights of the Defendants as envisaged in the scheme of the Code as well as there was a violation of the principles of natural justice. By refusing to allow the present Appellant to contest the case, the Court exercising the original jurisdiction & the Court exercising the Appellate jurisdiction have not adopted a justice oriented approach & have disposed of the case on technicalities. Ultimately, Khageswar is declared to the adopted son of Narendra without giving him an opportunity to file his written statement & lead such evidence as he deems just & proper though he was all along present in the Court & was willing to contest the same, which has resulted in abuse of the process of law & occasioned in gross miscarriage of justice. 8. On the above observation, this Court finds it appropriate to set aside the Judgments of the Learned Civil Judge (Junior Division), Kendrapara in Title Suit No. 412 of 1994 & the Learned Additional District Judge, Kendrapara in Title Appeal No. 14 of 2000. The case is remanded back to the Court of Civil Judge (Junior Division), Kendrapara with a direction to allow the Appellant i.e. the Defendant No. 1 three weeks time to file his written statement. Learned Civil Judge shall recast the issue, if necessary & required, & then after affording reasonable opportunity to both the Plaintiff & the Defendants to lead such further evidence, shall dispose of the suit in accordance with law within a period of three months from the date of receipt of the lower Court records. Send back the L.C.Rs. immediately. The Appellant is directed to appear before the civil Judge (Junior division), Kendrapara on 12.03.2010. Keeping in view the peculiar facts of the case, there shall be no order as to costs.