Advocates:
['M/S S K SAMANTARAY', '', 'B SAHOO', 'M/S BISHNU PRASAD PRADHAN', 'B NAYAK', 'B R SAHU', 'M/S BISWAJIT MOHAPATRA', 'M/S SANGRAM KESHARI SAHU', '', 'M/S DAYANAND MOHAPATRA', 'MANAS R PRADHAN', 'J BARIK', 'P K SINGHDEO']

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IN THE HIGH COURT OF ORISSA AT CUTTACK

CMP NO.258 OF 2019

Sudhamayee Pattnaik & ors.

….

Petitioners

Mr.S.K.Samantaray, Adv.

-versus-

Bibhu Prasad Sahoo & ors.

….

Opposite Party(s)

Mr.D.Mohapatra, Adv. for O.Ps.1 & 2

Mr.B.P.Pradhan, Adv. for O.Ps.3 to 6

CORAM:

JUSTICE BISWANATH RATH

Order

No.

ORDER

28.3.2022

7.

1.

Heard learned counsel for the Parties.

2.

The CMP involves allowing an Application under Order 1

Rule 10 of C.P.C. undisputedly at the instance of Defendant Nos.1 to

3. For the facts disclosure in the suit involving declaration,

permanent injunction and recovery of possession, in filing the

Application under Order 1 Rule 10 of C.P.C., Defendant Nos.1 to 4

attempted to bring third party interest claiming to have been taken

place involving the disputed property. Considering the rival

contentions of the Parties, the trial court allowed the Application by

the impugned order.

3.

Mr.Samantaray, learned counsel for the Petitioners however

referring to the objection to such Application by the Plaintiffs

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submitted that the Plaintiffs are the masters of the suit. No Party

should be added at the behest of the Defendants. Further addition by

way of this claim will multiply the litigation. In the circumstance,

learned counsel for the Petitioners attempted to oppose the

impugned order.

4.

Mr.D.Mohapatra, and Mr.B.P.Pradhan, learned counsel

appearing for the O.Ps. attempted to justify the impugned order.

5.

Considering the rival contentions of the Parties, this Court

finds, the Order 1 Rule 10 of C.P.C. Application has been brought

by Defendant Nos.1 to 4 to bring third party to the fold of contest. In

the Premises, it is stated that the questions involved herein since the

Plaintiff becomes Dominus Litis, if such an Application at the

instance of the Defendants entertainable. Considering the rival

contentions of the Parties and going through the decision of the

Hon’ble apex Court in Rahul S Shah vrs. Jinendra Kumar Gandhi

& ors reported in (2021)6 SCC 418 (AIR 2021 SC 2161), this Court

finds, through the said decision, particularly involving the suit for

recovery of possession, Hon’ble apex Court so far as it relates to

Order 1 Rule 10 of C.P.C. Application is concerned, has come to

observe as follows :-

“37. It also becomes necessary for the trial court to determine what

is the status of the property and when the possession is not disputed,

who and in what part of the suit property is in possession other than the

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defendant. Thus, the court may also take recourse to the following

actions:

37.1. Issue commission under Order 26 Rule 9 CPC—A

determination through commission, upon the institution of a suit shall

provide requisite assistance to the court to assess and evaluate to take

necessary steps such as joining all affected parties as necessary parties

to the suit. Before settlement of issues, the court may appoint a

Commissioner for the purpose of carrying out local investigation

recording exact description and demarcation of the property including

the nature and occupation of the property. In addition to this, the court

may also appoint a Receiver under Order 40 Rule 1 to secure the status

of the property during the pendency of the suit or while passing a

decree.

37.2. Issue public notice specifying the suit property and inviting

claims, if any, that any person who is in possession of the suit property

or claims possession of the suit property or has any right, title or interest

in the said property specifically stating that if the objections are not

raised at this stage, no party shall be allowed to raise any objection in

respect of any claim he/she may have subsequently.

37.3. Affix such notice on the said property.

37.4. Issue such notice specifying suit number, etc. and the court i