[Cites 2, Cited by 0]
Orissa High Court
Reeta Rohi Das & Ors vs Nilandri Rohi Das & Ors. ..... Opposite ... on 2 February, 2026
Author: Aditya Kumar Mohapatra
Bench: Aditya Kumar Mohapatra
IN THE HIGH COURT OF ORISSA AT CUTTACK
CMP No.164 of 2026
Reeta Rohi Das & Ors. ..... Petitioners
Represented by Adv. -
Amit Prasad Bose, Sr.
Adv.
-versus-
Nilandri Rohi Das & Ors. ..... Opposite Parties
Represented by Adv. -
CORAM:
THE HON'BLE MR. JUSTICE ADITYA KUMAR
MOHAPATRA
ORDER
02.02.2026
Order No.
01. 1. This matter is taken up through Hybrid Arrangement (Virtual
/Physical Mode).
2. Herd Sri A.P.Bose, learned Senior Counsel for the
Petitioners. Perused the CMP application as well as the prayer
made therein.
3. By filing the present CMP application under Article 227 of
the Constitution of India, the 3rd party-co sharers approached the
appellate court by filing an application under Order 1 Rule 10 of
the CPC to add them parties to the suit. However, consideration of
such application having been deferred by the learned District
Judge, Jharsuguda in RFA No.57 of 2023 vide order dated
22.12.2025, the Petitioners have approached this Court for a
direction to the learned appellate court to consider the application
under Order 1 Rule 10 before going for the final hearing of the
appeal.
4. Mr.Bose, learned Senior Counsel for the Petitioners at the
outset contended that initially a suit was filed by the Opposite
Party No.1-plaintiff for declaration of title and for other ancillary
reliefs. Learned Senior Counsel for the co sharers-Petitioners at the
outset alleged that they are complete branch who have a lawful
right over the property but they have not been impleaded as parties
to the suit. He also alleged that the suit is a collusive suit between
the plaintiff and defendants and eventually they managed to obtain
a decree from the learned trial court. Though the suit was partly
decreed, the plaintiff, as appellant, has preferred an appeal before
the learned District Judge, Jharsuguda which has been registered as
RFA No.57 of 2023. In the pending appeal a cross appeal has also
been filed by the respondents.
5. Mr.Bose, learned Senior Counsel for the Petitioners at this
juncture contended that at the appellate stage the Petitioners came
to learn about the collusive decree and, accordingly, moved an
application under Order 1 Rule 10 of the CPC to implead them as
parties to the appeal. Such application was objected to by the
plaintiff and others and by virtue of order dated 22.12.2025 the
learned District Judge has deferred the hearing of the Order 1 Rule
10 application to the time of final hearing of the appeal. Mr.Bose,
learned Senior Counsel appearing for the Petitioners at this
juncture emphatically argued that the learned appellate court
should have considered the application of the Petitioners under
Order 1 Rule 10 of the CPC before going for the final hearing of
the appeal. On such ground, he further contended that the
impugned order dated 22.12.2025 is unsustainable in law and,
accordingly, the same should be set aside.
6. Having heard the learned Senior Counsels appearing for the
Petitioners, on a careful examination of the background facts as
well as the documents annexed to the CMP application, and further
on a close scrutiny of the order dated 22.12.2025, this Court
observes that the Petitioners moved an application under Order 1
Rule 10 for their impletion as a party to the appeal. Their main
ground in such application is that although their branch has a
subsequent right on the suit property and, as such, they are co-
sharers to the suit scheduled land. However, stunningly the parties
to the suit have excluded them from the purview of the suit and
they have not been deliberately added as parties to the suit. On
such ground, it has been alleged that serious prejudice has been
caused to the Petitioners. The learned appellate court, upon a
consideration of the application under Order 1 Rule 10 CPC, vide
order dated 22.12.2025 deferred hearing of such application to the
time of final hearing of the appeal.
7. On a careful analysis of the factual as well as the legal
position involved in the CMP application, this Court is of the
considered view that first of all the Petitioners were not parties to
the suit. Therefore, any decree passed will not be binding upon
them. Further, the application under Order 1 Rule 10 was filed at
the appellate stage. Therefore, the validity and legality of non-
impletion of the Petitioners as parties is to be tested at the time of
final hearing of the appeal. In the event, the learned appellate court
holds that the Petitioners were necessary parties to the suit and they
were not impleaded, then the appellate court shall pass necessary
orders holding that the suit was not maintainable in the absence of
the necessary parties. However, in the event the learned appellate
court holds that they were not necessary parties, then the decree
which is under challenge in the appeal is to be tested on other
grounds. Thus, there is no doubt that the question with regard to
non-impletion of some of the necessary parties is to be considered
at the time of final hearing of the appeal. In such view of the
matter, this Court is of the view that the learned appellate court has
not committed any illegality in deferring the application filed at the
instance of the Petitioners under Order 1 Rule 10 of the CPC till
final hearing of the appeal.
8. Accordingly, the present application is being disposed by
directing the learned appellate court to consider the application
under Order 1 Rule 10 of the CPC which has been deferred by him
vide order dated 22.12.2025 in RFA No.57 of 2023 to be
considered the time of final hearing of the appeal, by providing an
opportunity of hearing to the Petitioners in the final hearing of the
appeal. The grounds raised with regard to non-impletion of the
necessary parties in the application under Order 1 Rule 10 of the
CPC shall also be taken into consideration by the first appellate
court as per law.
9. With the aforesaid observations/ directions, the CMP
application stands disposed of.
( A.K. Mohapatra)
Judge
Anil
Designation: Junior Stenographer
Location: High Court of Orissa
Date: 03-Feb-2026 17:48:02
