Orissa High Court

Chandana Chakradhar Rao vs Chandana Jagan Mohini & Ors. .... ... on 1 September, 2025

Author: B.P. Routray

Bench: B.P. Routray

Signature Not Verified
Digitally Signed
Signed by: SANGRAM DAS
Reason: Authentication
Location: High Court of Orissa, Cuttack
Date: 01-Sep-2025 18:17:42




                                    IN THE HIGH COURT OF ORISSA AT CUTTACK

                                                     C.M.P. No.1229 of 2025

                            (In the matter of an application under Article 227 of the Constitution
                            of India)


                             Chandana Chakradhar Rao                   ....             Petitioner


                                                                    -versus-


                             Chandana Jagan Mohini & Ors.              ....          Opposite Parties



                            Advocate(s) appeared in this case:-

                                          For Petitioner         : Mr. J.R.Dash, Advocate

                                          For Opposite Parties   : Mr. S.S.Rao, Sr.Advocate



                                             CORAM: JUSTICE B.P. ROUTRAY
                                                             JUDGMENT

st 1 September 2025

B.P. Routray, J.

1. Heard Mr. J.R.Dash, learned counsel for the Petitioner and

Mr. S.S.Rao, learned Senior Counsel for Opposite Parties.

2. Present CMP is directed against impugned order dated 5th

April 2025 passed in C.S. No.71 of 2015 by learned Senior Civil

Location: High Court of Orissa, Cuttack

Judge, Rayagada, wherein the prayer to implead Defendant Nos. 2,

3, 4 and 7 has been refused.

3. The Petitioner is the plaintiff who filed the suit praying for

partition. Among the Defendants, notice could not be made

sufficient on Defendant Nos. 2, 3, 4 and 7 for the fault on the part of

the Plaintiff due to failure to provide their correct addresses. As

such, for non-taking appropriate steps by the Plaintiff against

Defendant Nos. 2, 3, 4 and 7, the suit was dismissed against them

vide order dated 4th March 2016 of learned Trial Court. Thereafter

the Plaintiff filed a petition dated 2nd August 2016 praying to recall

that order dated 4th March 2016 and to continue the suit against those

Defendants. Said prayer of the Plaintiff was rejected by order dated

9th December 2016 of the Trial Court. This order dated 9th December

2016 was never challenged by the Plaintiff before the higher Court.

Subsequently, around eight years after, a petition dated 11th

September 2024 styled under Rule 10 of Order 1, CPC was filed by

the Plaintiff to implead Defendant Nos. 2, 3, 4 and 7 as parties in the

suit. Said prayer of the Plaintiff is again rejected vide impugned

order dated 5th April 2025.

Location: High Court of Orissa, Cuttack

4. It is submitted by Mr. Dash, learned counsel for the Petitioner

that a suit for partition cannot proceed leaving a co-sharer or co-

sharers and therefore presence of Defendant Nos. 2, 3, 4 and 7 are

very much necessary in the suit. It is submitted that since the

substantial right of the Plaintiff is going to be affected in absence of

Defendant Nos. 2, 3, 4 and 7, the Procedural formalities should not

stand on the way of the Plaintiff to get substantial justice. It is thus

submitted by him that irrespective of the nomenclature of the

petition filed by the Plaintiff, he may be allowed to array Defendant

Nos. 2, 3, 4 and 7 in the suit.

5. Mr. Rao, learned Senior Counsel for the Opposite Parties on

the other hand submits that the Plaintiff was sitting over the matter

for quite long period without taking appropriate steps. Therefore, the

learned Trial Court has rightly rejected his prayer and the Plaintiff

has to face the consequence of his own inaction. It is further

submitted that the Plaintiff is not interested for substantial justice but

only interested to linger the matter which is seen from his conduct.

6. On the backdrop of such rival submissions, it is found

admitted that the suit is for partition in respect of the joint family

property of the parties. It is true that Defendant Nos. 2, 3, 4 and 7

Location: High Court of Orissa, Cuttack

could not be served with notice properly due to the failure on the

part of the Plaintiff for providing their addresses and the Court

without getting any other option dismissed the suit against said

Defendants. Such order of the Trial Court being sought to be

recalled vide petition dated 2nd August 2016, the prayer of the

Plaintiff was rejected by order dated 9th December 2016. This order

dated 9th December 2016 of the Trial Court is never challenged

before any higher Court and it has attained finality as on date.

Around eight years thereafter, the Plaintiff by circumventing the

procedure to nullify said order dated 9th December 2016 of the Trial

Court, had filed the petition under Order 1 Rule 10 of CPC. This is

nothing but an attempt on the part of the Plaintiff to nullify the order

of dismissal of the suit dated 4th March 2016 against Defendants No.

2, 3, 4 and 7.

7. So far as the maintainability of such petition under Order 1

Rule 10 is concerned, when the parties were already on record

numbered as Defendant Nos. 2, 3, 4 and 7, against whom the suit has

already been dismissed, the prayer to add them further by taking

recourse under Order 1 Rule 10 CPC is certainly unsustainable and

impermissible. This scope and object of the Order 1 Rule 10 is

Location: High Court of Orissa, Cuttack

though for addition of necessary parties in the suit but that cannot be

used in a circumvented way to re-add the existing parties in the suit.

It is seen that such attempt on the part of the Plaintiff to add

Defendant Nos. 2, 3, 4 and 7 in the guise of the provisions under

Order 1 Rule 10 is not permissible.

8. At this stage Mr. Dash, learned counsel for the Petitioner

submits that the Plaintiff has admittedly committed mistake by not

challenging the order of the Trial Court dated 9 th December 2016 in

higher forum and in order to get the substantial justice there is no

other way left for the Plaintiff without adding Defendant Nos. 2, 3, 4

and 7 in the fray. He further submits that the procedural defect

should not stand on the way of the party to get substantial justice.

9. In United Bank of India vs. Naresh Kumar & Ors., (1996) 6

SCC 660 it is observed:-

"Procedural defects which do not go to the root of the matter should not be permitted to defeat a just cause. There is sufficient power in the courts, under the Code of Civil Procedure, to ensure that injustice is not done to any party who has a just case. As far as possible a substantive right should not be allowed to be defeated on

Location: High Court of Orissa, Cuttack

account of a procedural irregularity which is curable."

10. It is true that the rules of procedure are meant to advance the

cause of justice. In Jai Jai Ram Manohar Lal vs. National Building

Material Supply, Gurgaon, (1969) 1 SCC 869, It has been stated by

Hon'ble Supreme Court that, the rules of procedure are intended to

be handmaid to be administration of justice and a party cannot be

refused just relief merely because of some mistake, negligence,

inadvertence or even infraction of the rules of procedure.

11. In the case at hand, looking at the nature of the suit which is

with prayer for partition among the co-sharers, the substantial right

of the Plaintiff cannot be effectuated in absence of Defendants No.

2, 3, 4 and 7. Therefore, keeping in view the prayer of the Plaintiff

and the right for substantial justice involved in the suit, while this