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

1^st 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 5^th April 2025 passed in C.S. No.71 of 2015 by learned Senior Civil

Location: High Court of Orissa, Cuttack Date: 01-Sep-2025 18:17:42 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 4^th March 2016 of learned Trial Court. Thereafter the Plaintiff filed a petition dated 2^nd August 2016 praying to recall that order dated 4^th March 2016 and to continue the suit against those Defendants. Said prayer of the Plaintiff was rejected by order dated 9^th December 2016 of the Trial Court. This order dated 9^th December 2016 was never challenged by the Plaintiff before the higher Court. Subsequently, around eight years after, a petition dated 11^th 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 5^th April 2025.

Location: High Court of Orissa, Cuttack Date: 01-Sep-2025 18:17:42

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 Date: 01-Sep-2025 18:17:42 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 2^nd August 2016, the prayer of the Plaintiff was rejected by order dated 9^th December 2016. This order dated 9^th 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 P