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2017 DIGILAW 8 (ORI)

Laxmidevi Agrawal v. State of Orissa

2017-01-02

D.DASH

body2017
JUDGMENT : In this writ application under Article 227 of the Constitution, the petitioner seeks quashment of an order dated 13.12.2010 passed by the learned Civil Judge (Sr. Division), Bolangir in C.S. No.63 of 2008 rejecting her application under Order-1, Rule-10 of the Code of Civil Procedure to implead one Bhanumati Dash and the legal heirs of Debi Prasad Dash as parties to the suit. 2. Heard learned counsel for the parties. I have gone through the order in question. 3. The opposite party no.3 as the plaintiff has filed the above noted suit for declaration of his right, title and interest over suit schedule ‘A’ and ‘B’ lands and for confirmation of possession with the relief of permanent injunction. In the suit, the said opposite party o.3 as the plaintiff had arraigned opposite party nos.1 and 2 of the present writ application as the defendants. Later on an application under Order-1, Rule-10 of the Code by the opposite party no.3 (plaintiff) and upon grant of leave, this petitioner has come to be arraigned as one of the defendants. The suit then proceeded and when it was posted for argument, this petitioner (defendant no.3) filed a petition under Order-1, Rule-10 of the Code for bringing one Bhanumati Dash and legal heirs of Debi Prasad Dash to the arena of the suit. It is pertinent to state here that this petitioner has been arraigned in the suit as one of the defendants on the allegation by the plaintiff-opposite party no.3 that she has been creating disturbance in possession of the plaintiff in so far as the suit land is concerned. This petition was filed when the suit was posted for argument stating that those persons are to be added as parties since schedule ‘A’ land has been settled in the name of Debi Prasad Dash and Bhanumati Dash by an order in a Mutation Case followed by issuance of record of right. It is pertinent to state here that this petitioner after being arraigned as one of the defendants has been contesting the suit without pleading. The move faced resistance from the side of the opposite party no.3 (plaintiff) denying the allegation of settlement of schedule ‘A’ land in favour of those persons. It was also opposed for being not supported by any document. The move faced resistance from the side of the opposite party no.3 (plaintiff) denying the allegation of settlement of schedule ‘A’ land in favour of those persons. It was also opposed for being not supported by any document. It is further stated that when the petitioner (defendant no.3) claims to have purchased schedule ‘A’ land from Debi Prasad Dash and Bhanumati Dash, there arises no need to bring those persons as parties to the suit when this petitioner’s claim flows from them. The trial court as it appears from the order has gone for elaborate discussion as regards the factual aspects placed by the petitioner-defendant no.3 touching the subject of impletion of parties being controverted by the opposite party no.3 (plaintiff). It has also perused the certified copy of the order of the Mutation Case and upon comparison of the land particulars, conclusion has been that the schedule ‘A’ land does not appear to have been settled in favour of those persons in the Mutation Case. Then taking a view that the move of the petitioner (defendant no.3) is half hearted without filing any written statement in nor taking any specific defence to thwart the suit and even not giving the address of that Bhanumati Dash and not stating detail particulars as regards the legal representatives of Debi Prasad Dash with their address, the trial court has rejected the prayer made at such highly belated stage of the suit. 4. The petitioner (defendant no.3) since had filed an application under Order-1, Rule-10 of the Code, it was incumbent upon her to satisfy the Court that the presence of those persons before the Court in that suit is necessary in order to enable the Court to effectually and completely adjudicate upon and settle all the questions involved in the suit. It may be stated at the cost of repetition that this petitioner (defendant no.3) has been arraigned as the defendant on the allegation of creating disturbance in the possession of the plaintiff in respect of the suit land and has chosen to contest the suit without any pleading stating her claim in clear terms as far as the sit land is concerned. The opposite party no.3 (plaintiff) has not claimed any relief in particular against those persons sought to be arraigned as defendants. The opposite party no.3 (plaintiff) has not claimed any relief in particular against those persons sought to be arraigned as defendants. If from the evidence the Court finds that in the absence of those persons the issue relating to declaration of right, title and interest and confirmation of possession of opposite party no.3 (plaintiff) cannot be properly answered, the Court would accordingly deal that while deciding the suit. In any event, even if the opposite party no.3 (plaintiff) succeeds in the suit and if at all those persons are found to be having any subsisting right, title, interest and possession over the suit land, obviously the ultimate judgment and decree in the suit would not bind them. The petitioner (defendant no.3) on the basis of the evidence already on record is at liberty to place the matter accordingly in that light before the trial court during argument seeking an answer that since those persons have the substantive right over the suit land, grant of relief of declaration of right, title and interest to the opposite party no.3 (plaintiff) is not permissible in law and therefore they ought to have been made parties to the suit to avoid multiplicity of proceedings. In view of the above discussion and reasons, this Court does not find that said order has been passed in breach of the settled legal position holding the field causing miscarriage of justice. 5. In the wake of aforesaid, the application under article-227 of the Constitution stands rejected. However, while parting, it may be observed that the trial court while rendering the answers to the issues framed in the suit would in no way be influenced by any of the observations made by it in the order in question as also any such expression or observations which have been made hereinabove. 6. The writ application is accordingly dismissed. No order as to cost. Viewing the age of the suit, the trial court is directed to dispose of the suit in accordance with law with expediency, preferably, within a period of six months from the date of communication of this order or production of its certified copy whichever is earlier. Application dismissed.