Amics Naketi Deula vs Prana Krishna Pradhan &
2022 Latest Caselaw 2572 Ori

              IN THE HIGH COURT OF ORISSA AT CUTTACK

                            C.M.P. No.1564 of 2017
            AMICS Naketi Deula.        ....                                Petitioner(s)
                                                           Mr.P.K.Satpathy,
                                                           Advocate

                                            -versus-

            Prana Krishna Pradhan &            ....                  Opposite Party(s)
            Anr.                                            Mr.Manas Chand, Advocate
                                                        (For O.P.No.1)

                     CORAM:
                     JUSTICE BISWANATH RATH
                                        ORDER

12.05.2022 Order No. 05 1. Heard learned counsel appearing for the parties.

2. This Civil Miscellaneous Petition involves rejection of an application under Order 1, rule 10 of the Code of Civil procedure. Undisputedly, pending consideration of Civil Suit No.374/2013-2017 on the file of Civil Judge (Senior Division), Rairakhol, finding the particular property involved and the third party having interest in such property, third party attempted to bring an application under Order 1, rule 10 of the Code of Civil procedure to add him as a party to the suit proceeding to have effective adjudication of the dispute also involving third party. Such petition having been rejected on contest, brings out the present Civil Miscellaneous Petition.

3. Mr.Satpathy, learned counsel appearing for the third party- petitioner in opposition to the impugned order contends that there has been previous transfer and the third party has a definite interest involving the disputed property. It is taking the above plea, Mr.Satpathy, learned counsel contended that unless the third party is allowed to participate in the suit proceeding, there will not only be amounting to a decree against him behind his back but there would also be leading to multifarious litigations. It is in the circumstance, Mr.Satpathy, learned

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counsel submitted that there is mechanical consideration of the application involved herein which unless is interfered, it will set bad precedent.

4. Mr.Chand, learned counsel appearing for the contesting opposite party-plaintiff on the other hand opposing the claim of third party claimed the foundation on the basis of which the third party wanted to come in a pending suit is absolutely no strength. The third party is bringing such application on absolute false premises. Mr.Chand, learned counsel further contended that even after admission of third party as a co-defendant, there is no likelihood of success to the co-defendant. Taking this Court to the reason assigned in the rejection application, Mr.Chand, learned counsel appearing for the contesting opposite party attempted to support the impugned order.

5. Considering the rival contentions of the parties and going through the application under Order 1, rule 10 of the Code of Civil Procedure, this Court finds there is foundation disclosing the third party also having interest over the disputed property, for the nature of application taken up for consideration, it becomes the duty of the Court to see whether third party has a right to be considered in the suit or not? Further, as the property involved in the suit has been claimed to be also the property of the third party involving his previous transaction, for the opinion of this Court, inclusion of such party should not be construed as allowing the suit. Inclusion of such party at this stage only bringing any further dispute involving the same property and also to resolve all such issue involving such property in one go. Such attempt will also avoid multiplicity of litigation. This Court takes into account the decision of the Hon'ble Apex Court in the case of Rahul S.Shah -versus- Jinendra Kumar Gandhi and Ors., (2021) 6 Supreme Court Cases 418 where the Hon'ble Apex Court in deciding a case involving recovery of possession of disputed property observed in such contingency the parties likely to be affected, if necessary, even to be brought, if required, entering into paper publication. This Court here finds the party

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volunteer to come in a suit involving recovery of possession. The decision in the Rahul S.Shah case has direct application to the case at hand.

6. Keeping this in view and for there is necessity for complete adjudication not only the suit property but also involving all parties having interest on it, this Court finds, there is incorrect approach adopted by the trial court in deciding the application under Order 1, rule 10 of the Code of Civil Procedure.

7. In the process, this court interfering in the impugned order at Anenxure-1, sets aside the same. As a consequence of the above, while setting aside the impugned order, this Court allows the application under Order1, rule 10 of the Code of Civil Procedure at the instance of the petitioner. Further as a consequence, this Court directs the plaintiff to set his cause title accordingly and serve copy of the corrected plaint on the newly added defendant no.1 providing him to take steps as appropriate for facilitating to be decided in complete adjudication of the dispute. In the process and for the decision of the case already involving newly added party, this Court directs the defendant no.2 to file written statement and such other application as permissible under law at least within a period of two weeks of receipt of copy of this judgment. Parties will file draft issues within a period of one week thereafter. Draft issues shall be finalized within a period of one week thereafter. After finalization of the draft issues the trial court may undertake the exercise to complete the proceeding preferably by end of this year.

8. The Civil Miscellaneous Petition stands disposed of with the observation and direction made hereinabove.

(Biswanath Rath) Judge Sks