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IN THE HIGH COURT OF ORISSA AT CUTTACK

CMP NO. 1181 OF 2022

Hemant Dey and others

….

Petitioners

Mr. Prafulla Chandra Acharya, Advocate

-versus-

Banamali Jena and others

….

Opp. Parties

CORAM:

JUSTICE K.R. MOHAPATRA

ORDER

Order No.

06.02.2023

1.

1.

This matter is taken up through hybrid mode.

2.

The Petitioners in this CMP seek to assail the order

dated 29^th July, 2022 (Annexure-2) passed by learned Civil

Judge (Junior Division), Jaleswar in C.S. No. 105 of 2017,

whereby an application filed by them under Order 1 Rule 10

C.P.C. to be impleaded as parties in the suit has been rejected.

3.

Mr. Acharya, learned counsel for the Petitioners submits

that the Plaintiffs-Opposite Party Nos.1 to 3 have filed the suit

for a declaration that the disputed land to an extent of Ac.0.04

decimals described in Schedule ‘B’ is part and parcel of Plot

No.971 under Khata No.255 and the Defendants have no right,

title and interest thereon. A prayer for permanent injunction and

recovery of possession has also been sought for against

Defendants-Opposite Party Nos. 4 to 9. During pendency of the

suit, the Petitioners describing themselves as co-villagers of the

Plaintiffs and Defendants filed an application under Order 1

Rule 10 C.P.C. stating that the land is being used as a road and if

the Plaintiffs manage to get a decree in collusion with the

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Defendants, the villagers will certainly lose the land, which is

being used as a road. Hence, they filed an application under

Order 1 Rule 10 C.P.C. to be impleaded as parties in the suit.

Learned trial Court relying upon the decision in the case of

Panjum Bibi Ramjan Bibi and seven others –v- Najina Alim

and another, reported in 2008 (II) OLR 747, came to hold that

the Plaintiffs are masters of the suit. They cannot be compelled

to fight a suit with a person against whom he does not claim any

relief. It has been further held that presence of the villagers-

Petitioners is not required for effective and complete

adjudication of the suit. Hence, learned trial Court rejected the

application under Order 1 Rule 10 C.P.C. filed by the

Petitioners.

4.

Mr. Acharya, learned counsel further submits that since

the suit is for declaration of right, title and interest, the Plaintiffs-

Opposite Party Nos.1 to 3 have say in the matter as they are co-

villagers and are using the suit land (Plot No.971) as a road.

This material aspect was lost sight of by learned trial Court

while adjudicating the matter. Hence, he prays for setting aside

the impugned order under Annexure-2 and to allow the petition

under Order 1 Rule 10 C.P.C.

5.

Upon hearing learned counsel for the Petitioners and on

perusal of the record more particularly copy of the plaint

annexed to the CMP as Annexure-1, it is apparent that the

Plaintiffs do not claim any relief against the present Petitioners.

The Petitioners seek to introduce a new case that the land is

being used by them as a road. Further, in the case of Panjum

Bibi Ramjan Bibi (supra), this Court held at para-7 as under:

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7. While considering the application for impleadment

under Order 1, Rule 10, CPC, the Court must keep in

mind that Plaintiff is the sole architect of his plaint

and he has a right to choose his own adversary

against whom he seeks relief. Mere apprehension of

any party that the Plaintiff and Defendant of the suit

may collusively get their suit decided remains

unfounded as whatever may be the Judgment and

order in a suit it cannot be binding on him as he was

not a party in the suit. Such Judgment or order shall

have no legal effect so far as the person who is not a

party in the case is concerned. Impleadment may be

necessary to avoid multiplicity of the su