ORDER
S.C. Mohapatra, J.
1. Plaintiffs have assailed the order of the trial court exercising the power under Order 1, Rule 10(2), C.P.C. adding opposite parties Nos. 3 to 5 as party defendants to the suit. There is no dispute that the property in dispute was in custody of deceased G. Simadri Naidu who died as a bachelor in Government Hospital, Parlakhemundi on 4-9-1983. He was in Government quarters. On his death, the Sub-divisional Officer made an inventory. After the inventory was made, he directed deposit of the articles in the Treasury. Claiming to be the legal representatives entitled to be in custody of the properties now in deposit in the treasury, the plaintiffs filed the suit for a declaration that they are the legal representatives of the deceased G. Simadri Naidu and are entitled to the properties in the treasury. In the suit, the State of Orissa and the Subdivisional Officer were the defendants.
During pendency of the suit, opposite parties 3 to 5 filed three applications for being added as parties alleging that they had pledged some of the articles with deceased G. Simadri Naidu and accordingly, they should be added as defendants in the suit The trial court having accepted the prayer and having directed them to be added as defendants, the plaintiffs have filed this Civil Revision.
Both the parties accept that the order has been passed in exercise of the power vested.
2, Under Order 1, Order 10, C.P.C. no appeal lies against this order. The correctness of the
order san be challenged under Section 105, C.P.C, and Order 43 Order 1 A, C.P.C. when appeal is filed against the decree. Normally, all wrong orders against which appeals do not lie are not to be interfered with in revision. Mr. Patnaik, however, submitted that after opposite parties are made parties and are allowed to contest the suit by filing written statement and leading evidence there would be no scope to challenge the order which would be of academic interest only. He submitted that the order directing the addition of opposite parties 3 to 5 as defendants would amount to exercise of jurisdiction with material irregularity by the trial court and unless interfered with in revision, the opposite party Nos. 3 to 5 would expand the scope of the suit to the prejudice of the plaintiff. Mr. S. Kr. Mohanty, the learned counsel for opposite parties Nos. 3 to 5 submitted that the order is justified both in law and on the facts and would have the effect of avoiding multiple litigations.
3. In order to consider whether the addition of opposite parties Nos. 3 to 5 would amount to exercise of jurisdiction with material irregularity, the provision in Order 1, Rule 10(2), C.P.C. is to be kept in view. It reads as follows : —
“(2) Court may strike out or add parties : —
The Court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the Court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of 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 the suit, be added.”
The aforesaid provision gives a clear picture that the discretion of the Court to add parties is very wide. At any stage, a party can be added. The only guideline provided by the legislature is “to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit. Therefore, the addition of a party would depend upon the questions involved in the suit.
4. Keeping in mind this guideline of the
legislature, it is to be examined whether
addition of opposite parties Nos. 3 to 5 would
be to enable the Court to effectually and
completely adjudicate upon and settle all the
questions involved in the suit In case the
presence of opposite parties Nos. 3 to 5 would
(Sic) neither be in adding them as defendants
would amount to exercise of jurisdiction with
material irregularity.
5. Mr. S. Kr. Mohanty, the learned counsel for opposite parties Nos. 3 to 5 relied upon a decision rendered by me which has been reported in (1984) 38 Cut L.T. 275 (Rama Chandra Kar v. Bichitrananda Kar). Considering the earlier Division Bench decision of this Court, reported in (1984) 57 Cut LT 31 (Indrajit Dandasena v. Mangal Charan Dandasena) and other decisions, I held that addition of parties would depend upon the facts and circumstances of each case.
6. As I have already indicated earlier, the suit relates to the property of deceased G. Simadri Naidu. The Sub-divisional Officer, prima facie, was of the opinion that some of the articles were pledged articles by others with late G. Simadri Naidu. It is true that in some of the articles opposite parties Nos. 3 to 5 claim that their names have been written on the articles. In this background, it is to be examined if they would be added as parties. It is to be remembered that the Sub-divisional Officer has not directed establishment of title for return of the property deposited in the Treasury. If the Sub-divisional Officer would have seized the property otherwise from G. Simadri Naidu, the later would have filed the suit for the said properties. In such a case, opposite parties Nos. 3 to 5 would have neither been necessary or proper parties. If there would have been a dispute regarding the right of G. Simadri Naidu to be in possession of the properties, the opposite party Nos. 3 to 5 would have been proper parties, since the real owner would entitled to possession. In case the opposite parties Nos. 3 to 5 would have made out a case that despite the consideration amount having been paid G. Simadri Naidu was illegally retaining the pledged articles then also opposite parties Nos. 3 to 5 would have been necessary parties. Where G. Simadri Naidu would not disown
the ownership of opposite party Nos. 3 to 5 to the articles pledged, there would be no question regarding the ownership of the articles involved in the suit and accordingly, they would not be required to be made parties. Same would be the position where the persons claiming to be legal representatives seek a declaration that they are entitled to the properties. This would be subject to the pledge, if any.
7. Mr. S. Kr. Mohanty, the learned counsel for opposite parties Nos. 3 to 5 submitted that in case the suit is disposed of in favour of the plaintiffs and the properties are handed over to them, they may remove the names of these opposite parties from the articles pledged by them to late G. Simadr Naidu. Misconduct of a person cannot be presumed. The apprehension is only a surmise. If the opposite parties Nos. 3 to 5 have a genuine apprehension, they can file independent suit against the plaintiffs for getting back the properties as per law and , contract, for which I express no opinion. In the present suit, however, they can get no relief. Yet, interest of justice would be best served in case the disposal of the suit is deferred for three months to enable the opposite parties Nos. 3 to 5 to seek their remedy as advisable. Hearing of the suit would not, however, be stayed.
8. In the result, the Civil Revision is allowed and the impugned order is set aside There shall be no order as to costs.