[Cites 4, Cited by 0]
Orissa High Court
Kunja Bihari Swain And Others vs Bigneswar Swain And Others ... Opposite ... on 4 December, 2025
Author: B.P. Routray
Bench: B.P. Routray
Signature Not Verified
Digitally Signed
Signed by: CHITTA RANJAN BISWAL
Reason: Authentication
Location: Orissa High Court, Cuttack
Date: 08-Dec-2025 13:39:10
IN THE HIGH COURT OF ORISSA AT CUTTACK
CMP No.1136 of 2025
(In the matter of an application under Article 227 of the Constitution
of India)
Kunja Bihari Swain and others ... Petitioners
-versus-
Bigneswar Swain and others ... Opposite Parties
Advocate(s) appeared in this case:-
For Petitioners : Mr.A.Routray, Advocate
For Opposite Parties : Mr.S.K.Pattanaik, Advocate
( for O.P.No.8)
Mr.B.Routray, Advocate
(for O.P.No.9)
Mr.D.R.Swain, Advocate
(for O.P.No.7)
CORAM: JUSTICE B.P. ROUTRAY
JUDGMENT
th
4 December, 2025
B.P. Routray, J.
1. Present CMP is directed against order dated 29th April 2025 of
the learned Civil Judge (Jr.Division), First Court, Cuttack passed in
C.S.No.160 of 2012, wherein the prayer of Defendant No.8 under
Signed by: CHITTA RANJAN BISWAL
Location: Orissa High Court, Cuttack
Date: 08-Dec-2025 13:39:10
Order 1 Rule 10 CPC was allowed by learned trial court to add 3rd
party Defendant No.11.
2. Heard Mr. A.Routray, learned counsel for the Petitioners,
Mr.S.K.Pattnaik, learned counsel for Opposite Party No.8,
Mr.B.Routray, learned counsel for Opposite Party No.9 and
Mr.D.R.Swain, learned counsel for Opposite Party No.7.
3. Present Petitioners are the plaintiffs, who filed the suit praying
for declaration of right title interest over the suit schedule land,
confirmation of possession, permanent injunction and other
consequential reliefs. After the evidence was closed from the side of
the plaintiffs and at the stage of adducing of evidence from the side of
Defendant No.8, the petition dated 13th September 2024 was filed by
him to implead one Manasmita Senapati as Defendant No.11 on the
ground that she purchased part of suit land pending the lis from
Plaintiff No.1 violating the interim order of status quo. The learned
trial court allowed such prayer of Defendant No.8 by observing that
she is required to be impleaded in the suit as the right to sue survives
against her.
4. The principles regarding addition of necessary or proper party
in the suit have been well settled. In Mumbai International Airport
Signed by: CHITTA RANJAN BISWAL
Location: Orissa High Court, Cuttack
Date: 08-Dec-2025 13:39:10
(P) Ltd. v. Regency Convention Centre & Hotels (P) Ltd., (2010) 7
SCC 417, it has been held that:-
"13. The general rule in regard to impleadment of parties is that
the plaintiff in a suit, being dominus litis, may choose the
persons against whom he wishes to litigate and cannot be
compelled to sue a person against whom he does not seek any
relief. Consequently, a person who is not a party has no right to
be impleaded against the wishes of the plaintiff. But this general
rule is subject to the provisions of Order 1 Rule 10(2) of the
Code of Civil Procedure ("the Code", for short), which provides
for impleadment of proper or necessary parties. The said sub-
rule is extracted below:
"10. (2) Court may strike out or add parties.--The court
may at any stage of the proceedings, either upon or without
the application of either party, and on such terms as may
appear to the court to be just, order that the name of any
party improperly joined, whether as plaintiff or defendant, be
struck out, and that the name of any person who 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 and completely to adjudicate
upon and settle all the questions involved in the suit, be
added."
14. The said provision makes it clear that a court may, at any
stage of the proceedings (including suits for specific
performance), either upon or even without any application, and
on such terms as may appear to it to be just, direct that any of
the following persons may be added as a party: (a) any person
who ought to have been joined as plaintiff or defendant, but not
added; or (b) any person whose presence before the court may
Signed by: CHITTA RANJAN BISWAL
Location: Orissa High Court, Cuttack
Date: 08-Dec-2025 13:39:10
be necessary in order to enable the court to effectively and
completely adjudicate upon and settle the questions involved in
the suit. In short, the court is given the discretion to add as a
party, any person who is found to be a necessary party or proper
party.
15. A "necessary party" is a person who ought to have been
joined as a party and in whose absence no effective decree could
be passed at all by the court. If a "necessary party" is not
impleaded, the suit itself is liable to be dismissed. A "proper
party" is a party who, though not a necessary party, is a person
whose presence would enable the court to completely,
effectively and adequately adjudicate upon all matters in dispute
in the suit, though he need not be a person in favour of or
against whom the decree is to be made. If a person is not found
to be a proper or necessary party, the court has no jurisdiction to
implead him, against the wishes of the plaintiff. The fact that a
person is likely to secure a right/interest in a suit property, after
the suit is decided against the plaintiff, will not make such
person a necessary party or a proper party to the suit for specific
performance.
Xx .. xx ....
24. We may now give some illustrations regarding exercise of
discretion under the said sub-rule.
24.1 If a plaintiff makes an application for impleading a
person as a defendant on the ground that he is a necessary
party, the court may implead him having regard to the
provisions of Rules 9 and 10(2) of Order 1. If the claim
against such a person is barred by limitation, it may refuse to
add him as a party and even dismiss the suit for non-joinder
of a necessary party.
24.2 If the owner of a tenanted property enters into an
agreement for sale of such property without physical
Signed by: CHITTA RANJAN BISWAL
Location: Orissa High Court, Cuttack
Date: 08-Dec-2025 13:39:10
possession, in a suit for specific performance by the
purchaser, the tenant would not be a necessary party. But if
the suit for specific performance is filed with an additional
prayer for delivery of physical possession from the tenant in
possession, then the tenant will be a necessary party insofar
as the prayer for actual possession.
24.3 If a person makes an application for being impleaded
contending that he is a necessary party, and if the court finds
that he is a necessary party, it can implead him. If the
plaintiff opposes such impleadment, then instead of
impleading such a party, who is found to be a necessary
party, the court may proceed to dismiss the suit by holding
that the applicant was a necessary party and in his absence
the plaintiff was not entitled to any relief in the suit.
24.4 If an application is made by a plaintiff for impleading
someone as a proper party, subject to limitation, bona fides,
etc., the court will normally implead him, if he is found to be
a proper party. On the other hand, if a non-party makes an
application seeking impleadment as a proper party and the
court finds him to be a proper party, the court may direct his
addition as a defendant; but if the court finds that his
addition will alter the nature of the suit or introduce a new
cause of action, it may dismiss the application even if he is
found to be a proper party, if it does not want to widen the
scope of the specific performance suit; or the court may
direct such applicant to be impleaded as a proper party,
either unconditionally or subject to terms. For example,
if D claiming to be a co-owner of a suit property, enters into
an agreement for sale of his share in favour of P representing
that he is the co-owner with half-share, and P files a suit for
specific performance of the said agreement of sale in respect
of the undivided half-share, the court may permit the other
Signed by: CHITTA RANJAN BISWAL
Location: Orissa High Court, Cuttack
Date: 08-Dec-2025 13:39:10
co-owner who contends that D has only one-fourth share, to
be impleaded as an additional defendant as a proper party,
and may examine the issue whether the plaintiff is entitled to
specific performance of the agreement in respect of half a
share or only one-fourth share; alternatively the court may
refuse to implead the other co-owner and leave open the
question in regard to the extent of share of the defendant
vendor to be decided in an independent proceeding by the
other co-owner, or the plaintiff; alternatively the court may
implead him but subject to the term that the dispute, if any,
between the impleaded co-owner and the original defendant
in regard to the extent of the share will not be the subject-
matter of the suit for specific performance, and that it will
decide in the suit only the issues relating to specific
performance, that is, whether the defendant executed the
agreement/contract and whether such contract should be
specifically enforced.
25. In other words, the court has the discretion to either to allow
or reject an application of a person claiming to be a proper party,
depending upon the facts and circumstances and no person has a
right to insist that he should be impleaded as a party, merely
because he is a proper party."
5. In Sudhamayee Pattnaik v. Bibhu Prasad Sahoo, (2022) 17
SCC 286, it is stated that, ".. .. .. as per the settled position of law, the
plaintiffs are the dominus litis. Unless the court suo motu directs to
join any other person not party to the suit for effective decree and/or
for proper adjudication as per Order 1 Rule 10CPC, nobody can be
permitted to be impleaded as the defendants against the wish of the
Signed by: CHITTA RANJAN BISWAL
Location: Orissa High Court, Cuttack
Date: 08-Dec-2025 13:39:10
plaintiffs. Not impleading any other person as the defendants against
the wish of the plaintiffs shall be at the risk of the plaintiffs. Therefore,
subsequent purchasers could not have been impleaded as party
defendants in the application submitted by the original defendants,
that too against the wish of the plaintiffs."
6. Recently in Yogesh Goyanka vrs. Govind and others, (2024)
7SCC 524, it is observed that, ".. .. .. the law on impleadment of
subsequent transferees, as established by this Court has evolved in a
manner that liberally enables subsequent transferees to protect their
interests in recognition of the possibility that the transferor pendente
lite may not defend the title or may collude with the plaintiff therein.
Xx .. xx .. .. Permitting the impleadment of a transferee pendente lite
is, in each case, a discretionary exercise undertaken to enable a
purchaser with a legally enforceable right to protect their interests
especially when the transferor fails to defend the suit or where there is
a possibility of collusion."
7. By virtue of Odisha Amendment, which came into force on 20th
April 2022, the amendment was made to Order 1 Rule 10 of the Code
of Civil Procedure, 1908 by inserting a new proviso and the same
reads as follows:
Signed by: CHITTA RANJAN BISWAL
Location: Orissa High Court, Cuttack
Date: 08-Dec-2025 13:39:10
(a) In Order 1 in Rule 10 after sub-rule (2), the
following proviso shall be inserted, namely-
"Provided further that in suits where third party interest
emerges in the suit property after examination of the parties
under Rule-2 of Order-X or after production of documents
under Rule-14 of Order-XI or after receipt of the local
investigation report of the Commissioner under Rule-9 of
Order-XXVI, the Court shall add all such necessary or
proper parties to the suit so as to avoid multiplicity of
proceedings".
8. Admittedly, the plaintiff is the dominus litis in the suit and he
has the right to choose parties in the lis. As per the power under Order
1 Rule 10, the Court is authorized to add such persons as parties in the
event it feels that he is either necessary or a proper party. As
explained in the above decisions, a 'necessary party' is, without
whose presence no effective decree can be passed, and the 'proper
party' is, whose presence is required for effective adjudication of the
dispute. A lis pendens purchaser is not always necessary to be
impleaded as a party, except when he comes for protection of his
right. The matter would be different when the lis pendens purchaser
comes to Court to contend that in his absence his rights cannot be well
protected by the parties present in the suit. The Odisha Amendment to
Order 1 Rule 10 speaks of right of such parties to the lis after
examination of the parties under Order 10 Rule 2 of the CPC or after
Signed by: CHITTA RANJAN BISWAL
Location: Orissa High Court, Cuttack
Date: 08-Dec-2025 13:39:10
production of such documents under Order 11 Rule 14 or after receipt
of the local investigation report of the Commissioner under Order 26
Rule 9 CPC.
9. In the instant case, none of such conditions as prescribed in the
amended proviso to Rule 10 of Order 1 is satisfied. It is for the reason
that neither the parties have admitted such conditions under Order 10
Rule 2 nor did the local investigator was appointed under Order 26
Rule 9 CPC. It is also not the case that after production of the
document under Order 11 Rule 14, such a right of the third party in
respect to the suit property was arose. The contention of Defendant
No.8 is to the effect that since Manasmita Senapati has purchased part
of the suit property during pendency of the suit, she would be a
necessary party by itself, more so when she purchased the property
violating the interim order of status quo. It is also admitted at the Bar
that said Manasmita Senapati has been brought as a party in the
Interlocutory Application filed under Order 39 Rule 2(a) of the CPC
alleging violation of the interim order.
10. Thus, it is clear that said Manasmita Senapati, who is the
alleged lis pendens purchaser, has the knowledge of the suit pending
between the parties and despite that she did not come to contest the
Signed by: CHITTA RANJAN BISWAL
Location: Orissa High Court, Cuttack
Date: 08-Dec-2025 13:39:10
suit to protect her right or to defend against the plaintiff. Also it is not
the plaintiffs who seek impleadment of said Manasmita Senapati in
the suit and it is only Defendant No.8, who wants to bring her in the
fray for no purpose other than the fact that she is a lis pendens
purchaser of part of suit schedule property. The plaintiffs being the
dominus litis do not intend to bring this third party into the array of
the parties, but it is Defendant No.8 who wants to drag this third party
into the litigation. Had Manasmita Senapati come voluntarily to
protect her interest being a third party purchaser, it would have been a
different reason to implead her as the party in order to protect her
right. When neither the plaintiffs claim any relief against said third
party nor the third party herself comes to Court to protect her interest
in the pending litigation despite having knowledge of the same, it
would be unnecessary on the part of the Court to add her as Defendant
No.11 in exercise of the power under Order 1 Rule 10 at the behest of
Defendant No.8.
11. In the result, the CMP is allowed and the impugned order dated
29th April 2025 is set aside.
( B.P. Routray)
Judge
C.R.Biswal, A.R.-cum-Sr.Seretary
