Jhampuri Bewa vs The State of Orissa and Others

G.K. Misra, J.—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.

Order 1 Rule 10 (2) of the CPC 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.

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) clt. 841 :(A1R 1903 ori 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 CPC

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 CPC filed by opposite parties Nos. 4 to 7 would be

allowed or not.

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 writ ten statement by the original defendants stands excluded 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.

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.

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