Rejection of an application under Order 1 Rule 10 C.P.C. does not per se justify the rejection of the application for leave to file appeal. The appellate court should consider if the petitioner is aggrieved by the decree or prejudicially affected by it.

JUDGMENT :

A.K. Rath, J.

In this writ petition under Article 227 of the Constitution of India, challenge is made to the order dated 4.3.2009 passed by the learned Additional District Judge, Nayagarh in R.F.A. No. 20 of 2006 rejecting the application for leave to appeal.

2. Opposite party no.1 as plaintiff instituted Civil Suit No.17 of 2004 in the court of the learned Additional Civil Judge (Jr.Division), Khandapara for declaration of right, title and interest and for permanent injunction impleading opposite party no.2 as defendant. Lalita Singh Samanta, mother of the petitioner, filed an application under Order 1 Rule 10 C.P.C. for being impleaded as a party. The same was rejected. Subsequently another application was filed to recall the said order. The same was also rejected. While the matter stood thus, the suit was decreed on 3.4.2006. Challenging the judgment and decree dated 3.4.2006, she filed an appeal, being R.F.A. No.20 of 2006, before the learned Additional District Judge, Nayagarh. Since she was not a party to the suit, she filed an application seeking leave to file appeal. It is stated that the property would be damaged by the plaintiff and she will suffer irreparable loss. Further in Revenue Misc.Case No.26 of 52-53 share has been allotted. But the plaintiff obtained the decree by fabricating the facts. The plaintiff filed objection to the same. It is stated that mother of the petitioner had filed an application under Order 1 Rule 10 C.P.C. for being impladed as a party. The application was rejected on 9.3.2006. The said order was not challenged. Thus, the same had attained finality. Further she had instituted C.S. No. 49 of 2004 in the court of the learned Additional Civil Judge (Jr.Division), Khandapara, which was withdrawn by her on 20.3.2006. She filed Civil Suit No.30 of 2006 in the same court in respect of the suit land against him. The learned appellate court came to hold that the impugned decree is not absolute for having subjected to further appraisal and reconsideration by the Board of Revenue or other concerned authorities. The petitioner had not chosen to challenge the order rejecting the application under Order 1 Rule 10 C.P.C. Moreover, she has already filed C.S. No.32 of 2006 against opposite party no.1. Held so, the learned appellate court rejected the application. The said order is impugned in this petition. During pendency of the petition, the original petitioner died and in her place, the present petitioner, her son, has been substituted.

3. Heard Mr. S.K. Mishra, learned counsel for the petitioner and Mr. J.R. Dash, learned counsel for opposite party no.1.

4. Mr. Mishra, learned counsel for the petitioner submitted that mother of the petitioner was not a party to the suit. She is essentially aggrieved by judgment and decree passed by the trial court. Thereafter she filed an application for leave to file appeal. The learned appellate court committed a manifest illegality in rejecting the said application.

5. Per contra, Mr. J.R. Dash, learned counsel for opposite party no.1 supported the order passed by the appellate court. He submitted that the application filed by the mother of the petitioner under Order 1 Rule 10 CPC for being impleaded as a party to the suit was rejected by the learned trial court. She had not chosen to challenge the same. Thus the said order has attained finality. In view of the same, the learned appellate court is quite justified in rejecting the application for leave to file appeal. He further submitted that the order of rejection of the application under Order 1 Rule 10 C.P.C. would operate as res judicata.

6. The sole question that hinges for consideration of this Court is as to whether the learned appellate court is justified in rejecting the application of the mother of the petitioner for grant of leave to file appeal on the ground that earlier application under Order 1 Rule 10 C.P.C. was rejected by the learned trial court.

7. The expression of ‘appeal’ has not been defined