Advocates:
['M/S SAMIR KU MISHRA', '', 'J PRADHAN', 'P K JENA', 'P S MOHANTY', 'S ROUT', 'M/S S S KASHYAP', 'P K MISHRA', 'S MISHRA']

Page 1 of 4

IN THE HIGH COURT OF ORISSA AT CUTTACK

CMP NO. 1221 OF 2016

Smt. Sabitri Singh and others

Petitioners

Mr. Samir Kumar Mishra, Advocate

-versus-

Hari Singh and others

&.

Opp. Parties

CORAM:

JUSTICE K.R. MOHAPATRA

ORDER

Order No.

11.07.2022

6.

1.

This matter is taken up through hybrid mode.

2.

The Petitioners in this CMP seek to assail the order

dated 8^th April, 2016 (Annexure-2) passed in RFA No. 40 of

2005, whereby learned District Judge, Balasore rejected an

application filed by the Petitioners-Appellants under Order 1

Rule 10 C.P.C.

3.

Mr. Mishra, learned counsel for the Petitioners submits

that the present Petitioners as Plaintiffs filed T.S. No. 315 of

1984 before learned Civil Judge (Junior Division), Jaleswar with

a prayer to declare the R.O.R. in respect of 8Kha9 schedule

property to be wrong and also for partition of 8Gha9 by allotting

1/3^rd share in favour of the Appellants. The Defendant Nos. 1, 3

to 11, 13 and 16 filed their written statement as well as counter

claim. Along with other grounds, they had taken a plea that the

suit is bad for non-joinder of necessary parties. Learned Civil

Judge (Junior Division), Jaleswar dismissed the suit vide

judgment and decree dated 15^th January, 2005 and allowed the

counter claim of Defendant Nos.10, 11 and 16. Assailing the

judgment and decree passed in the suit, the Plaintiffs-Petitioners

// 2 //

Page 2 of 4

filed RFA No. 40 of 2005. During pendency of the appeal, the

present Petitioners as Appellants filed an application under

Order 1 Rule 10 C.P.C. to implead Tribhuban Singh and Malli

Singh as parties to the appeal as Respondent Nos. 23 and 24

respectively. The said petition was also rejected vide order

dated 8^th April, 2016 (Annexure-2), which is under challenge in

this CMP.

4.

Mr. Mishra, learned counsel for the Petitioners submits

that the suit was essentially filed for partition. As the R.O.R.

was wrongly prepared in the name of some of the Defendants, a

prayer was made for declaration of the said R.O.R. to be

erroneous. The proposed Respondents, namely, Tribhuban

Singh and Malli Singh, are necessary parties to the suit as well

as to the appeal. Hence, the appeal being the continuous of the

suit, they should have been impleaded as Respondents,

otherwise the Plaintiffs who claimed 1/3^rd share of the suit

property will be highly prejudiced. This material aspect was not

considered

by

learned

District

Judge,

Balasore

while

adjudicating the petition under Order 1 Rule 10 C.P.C. In that

view of the matter, the impugned order under Annexure-2 is not

sustainable and is liable to be set aside. He further prays for a

direction to implead said Tribhuban Singh and Malli Singh as

Respondent Nos.23 and 24 to the appeal respectively.

5.

Although Opposite Party Nos. 12, 16, 20, 23 and 24 are

represented through their learned counsel, none appears on their

behalf when the matter is called for hearing.

6.

Upon hearing learned counsel for the Petitioners and on

perusal of the impugned order, it appears that the Plaintiffs had

filed a suit for partition of Schedule 8Gha9 property and for

// 3 //

Page 3 of 4

declaration of their right, title and interest over 8Kha9 schedule

property, which is a part and parcel of the suit property. The

contesting Defendants filed their written statement along with

counter claim with a prayer to declare their right, title and

interest over Lot-1 of 8Gha9 Schedule property. They have taken

a plea that the suit filed by the present Petitioners is not

maintainable due to non-joinder of necessary parties. Learned

trial court dismissed the suit of the Plaintiffs not only on the

ground of non-joinder of necessary parties, but also with the

specific f