Advocates:
['MALAYA KUMAR MISHRA', '', 'B K RAGADA', 'G K DASH', 'P MISHRA']

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IN THE HIGH COURT OF ORISSA AT CUTTACK

CMP No. 684 of 2022

Haladhar Das Mohapatra

..&

Petitioner

Mr. Malaya Kumar Mishra, Advocate

-versus-

Duryodhan Sahoo and another

&.

Opp. Parties

CORAM:

JUSTICE K.R. MOHAPATRA

ORDER

Order No.

21.09.2022

2.

1.

This matter is taken up through hybrid mode.

2.

Order dated 30^th May, 2022 (Annexure-5) passed by

learned Additional District Judge, Puri in FAO No.5/28 of

2021/2017 is under challenge in this CMP, whereby learned

appellate Court, while modifying the order dated 14^th July,

2017 (Annexure-4) passed by learned Civil Judge (Senior

Division), Puri in CS No.417 of 1995 although allowed the

present Petitioner to be impleaded as Defendant to the suit, but

refused the prayer of the Petitioner to be impleaded as co-

Plaintiff.

3.

Mr. Mishra, learned counsel for the Petitioner submits

that during pendency of the suit, the Plaintiff - Harihara

Mahapatra executed a registered gift deed in favour of Haladhar

Das Mohapatra. On the basis of the same, the present Petitioner

filed an application under Order XXII Rule 10 CPC to be

impleaded as a co-Plaintiff to represent the estate of the Plaintiff

along with him. Learned Civil Judge (Senior Division), Puri, by

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order dated 14^th July, 2017 allowed the said application and

directed to implead the present Petitioner as a co-plaintiff.

Although the said order was not challenged by the Plaintiff

himself, Defendant assailed the same in FAO No.5/28 of

2021/2017. Learned additional District Judge, Puri vide order

under Annexure-5 modified the order passed by learned trial

Court to the extent that said Haldhar Das Mohapatra joined as a

Defendant and also directed the Plaintiff to file an amended

plaint by impleading said Haladhara Das Mohapatra accordingly.

3.1

Mr. Mishra, learned counsel further submits that by

virtue of a gift deed executed by the Plantiff-Harihara

Mahapatra, the property in question devolved upon the present

Petitioner. Hence, he is a necessary party to the suit. On earlier

occasion, due to negligence of the Plaintiff, the suit was

dismissed for default, but subsequently with the intervention of

this Court, the matter was restored on payment of cost. Thus,

there is every likelihood that the Plaintiff may not contest the

suit and in that event there will be irreparable loss to the

Petitioner. Taking into consideration the same, learned trial

Court allowed the application filed by the Petition under Order

XXII Rule 10 CPC and directed to implead the Petitioner as a

co-Plaintiff. The Plaintiff is not aggrieved by the said order.

However, Defendant, who has no locus standi, filed the

aforesaid appeal before learned Additional District Judge, Puri

under Order XLIII CPC and the impugned order has been

passed. While considering the matter, learned appellate Court

took into consideration that the Plaintiff has seriously

challenged the gift deed specifically stating that it was a forged

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document. It is his submission that, had it been so, then the

Plaintiff would have challenged the order passed by learned

trial Court in impleading the Petitioner as co-Plaintiff. Be that

as it may, the Defendant has no say in the matter. However, the

said order was challenged by the Defendant and learned

appellate Court by misconstruing the position of law, has

passed the impugned order. Hence, this CMP has been filed.

4.

Upon hearing learned counsel for the Petitioner and on

perusal of the record, it appears that the Petitioner is claiming

interest over the suit property by virtue of a gift deed dated 23^rd

February, 2012 stated to have been executed by the Plaintiff in

his favour. As it appears, the same is seriously disputed by the

Plaintiff himself. O