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Jhampuri Bewa Vs. the State of Orissa and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtOrissa High Court
Decided On
Case NumberCivil Revn. No. 6 of 1965
Judge
Reported inAIR1966Ori62
ActsCode of Civil Procedure (CPC) , 1908 - Order 1, Rule 10(2)
AppellantJhampuri Bewa
RespondentThe State of Orissa and ors.
Appellant AdvocateD.S. Misra and ;J. Das, Advs.
Respondent AdvocateRanjit Mohanty and ;L. Misra, Advs. (for Nos. 4 to 7) and ;Adv. General (for Nos. 1 to 3)
DispositionPetition allowed
Cases ReferredNarahari Mohanty v. Ghanashyam Bal
Excerpt:
.....the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the court has the discretion either to grant time to make the deposit or not. no formal order condoning the delay is necessary, an order of adjournment would suffice. the provisions of limitation embodied in the substantive provision of the sub-section (1) of section 173 of the act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the..........opposite parties nos. 4 to 7 who are residents of village kandira, the village of the plaintiff, filed an application on 30-10-64 praying that they should be impleaded as party-defendants. plaintiff's case is that she reclaimed 0.06 acre in plot no. 247 in village kandira and is in possession of the same by amalgamating it with her own homestead area for more than 20 years. the chakla kanungo of aul submitted a report in february, 1963 stating therein that the plaintiff was in possession only for 15 years. thereupon the defendant no. 2 started an encroachment case no. 4 of 1963-64 against the plaintiff. the plaintiff filed the suit for declaration of her occupancy right over the suit plot, confirmation of possession and for permanent injunction. defendants 1 to 3 have appeared in this.....
Judgment:
ORDER

G.K. Misra, J.

1. In T.S. No. 140 of 1964 in the Court of the Munsif, Kendrapara, there are three defendants. They are State of Orissa, Tahsildar, Kanika and S.D.O. Kendrapara. Opposite parties Nos. 4 to 7 who are residents of village Kandira, the village of the plaintiff, filed an application on 30-10-64 praying that they should be impleaded as party-defendants. Plaintiff's case is that she reclaimed 0.06 acre in plot No. 247 in village Kandira and is in possession of the same by amalgamating it with her own homestead area for more than 20 years. The Chakla Kanungo of Aul submitted a report in February, 1963 stating therein that the plaintiff was in possession only for 15 years. Thereupon the defendant No. 2 started an encroachment case No. 4 of 1963-64 against the plaintiff. The plaintiff filed the suit for declaration of her occupancy right over the suit plot, confirmation of possession and for permanent injunction. Defendants 1 to 3 have appeared in this suit, but have not filed any written statement. The learned Trial Court heard the plaintiff and opposite parties No. 4 to 7 on the latter's application under Order 1 Rule 10(2) of the Code of Civil Procedure. On 10-12-64 he allowed the application and directed the plaint to be amended. Against this order the Civil Revision has been filed. The correctness of the order of the learned Munsif is under challenge.

2. Order 1 Rule 10 (2) of the Code of Civil Procedure lays down that the Court may add at any stage of the proceeding either upon or without application of either party, any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in this suit.

3. The scope of this rule had been discussed fully in Damodar Mohapatra v. State of Orissa, Civil Revn. No. 201 of 1962 (Orissa) and in Narahari Mohanty v. Ghanashyam Bal, ILR (1963) Cut. 841 :(A1R 1903 Orissa 186). In the former case this Court took the view that the expression 'all the questions involved in this suit' must be construed in the wider and not in the narrower sense. Whether the wider or the narrower view is accepted, one matter is however, clear that before the Court finally determines the merits of an application under Order 1 Rule 10(2) of the Code of Civil Procedure he must be in possession of all the facts relating to all the questions involved in the suit. In this case admittedly written statements have not been filed by the defendants Nos. 1 to 3 against whom the suit had been brought. In the absence of their written statements the Court is not in a position to know the nature of the dispute between the plaintiff and defendants Nos. 1 to 3. Without knowing the issues between them the Court cannot exercise its discretion properly as to whether the application under Order 1 Rule 10(2) of the Code of Civil Procedure filed by opposite parties Nos. 4 to 7 would be allowed or not.

4. It may however be contended that the expression 'at any stage of the proceeding' includes the stage prior to the filing of the written statements by the defendants Nos. 1 to 3. Such an argument cannot be accepted as the very object in adding or striking off parties is to enable the court effectually and completely to adjudicate upon and settle all the questions involved in this suit. The expression 'at any stage' gives a very wide power to the Court to use its discretion in the matter of addition or striking off parties even at a late stage of the suit or even at the appellate stage. The user of the discretion at a later stage would not prejudice the parties as the Court would be fully aware by that time of all the questions involved in this suit. This principle would have no application if the application for addition of parties is allowed before the written statement is filed by the original defendants. The expression 'at any stage' therefore would not include a stage when the Court is not in a position to know all the questions involved in the suit.

Thus the stage prior to the filing of the written statement by the original defendants standsexcluded from the ambit of the expression'any stage'.

Both the underlined expressions (viz, 'at only stage' and 'questions involved in the suit'-Ed.) are integrally related and cannot be construed in isolation. If defendants Nos. 1 to 3 become ex parte and do not file written statements then only the trial Court can apply his mind to the application as, he would be in a position to know that defendants No. 1 to 3 do not challenge the case of the plaintiff.

5. I would set aside the order of the trial Court dated 10-12-1964 and direct that he would apply his mind to the question of addition of parties only after written statements are filed by defendants Nos. 1 to 3.

6. The Civil Revision is accordingly allowed, but in the circumstances, there would be no order as to costs.


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