BAYANI ALIAS BUDHIMANI MALIK Vs. DUKHAMANI DEI

JUDGEMENT

(1.) THIS Writ Application is directed against the Order dated 9.4.2002 passed by the Learned Civil Judge (Senior Division), Balasore in O.S. No. 926 of 2000 rejecting the petition filed under Order 1, Rule 10 of the Code of Civil Procedure.

(2.) AS it appears from the record the Opp. Parties 1 to 5 have , filed the suit for partition of 'B' Schedule property by metes and bounds and for passing a preliminary decree holding the 'C' Schedule property as the purchased property of the plaintiffs -Opp. Party Nos. 1 to 5 apart from other reliefs. Before the contesting Defendants 1 and 2 filed the written statement, the present petitioner filed an application under Order 1, Rule 10, CPC to be impleaded as defendant on the ground that she is the sister of Defendants 1 and 2 and as such she is a necessary party in the suit. The said application having been rejected, this Writ Application has been filed.

(3.) SHRI Dutta, the Learned Counsel appearing for the opposite parties, on the other hand, submitted that there is a grave doubt as to whether the petitioner is the sister of the Defendants 1 and 2 in view of the documents filed before the Trial Court as well as this Court. The Learned Counsel drew attention of the Court to the Yadast and submitted that the names of Defendants 1 and 2 only appear in the said Yadast as legal heirs of Punananda Mallik. There is no mention of the name of the petitioner in the said Yadast. Apart from the above, it was also contended by Shri Dutta that the petitioner has failed to establish her direct interest in the property and, therefore, she is not a necessary party in the suit. It was also contended by the Learned Counsel Shri Dutta that in the application for intervention the petitioner has specifically averred that she intends to challenge the sale deed executed in favour of the opposite parties by the Defendants 1 and 2 and such plea cannot be entertained as the same is time barred. According to Shri Dutta, if the petitioner is allowed to be impleaded as a party, a time barred plea shall be raised before the Court and as such, the same shall enlarge the scope of the suit. Reliance was placed on the decisions of this Court in the case of Asit Kumar Swain v. Krupasindhu Swain and Anr. reported in 1992 (I) OLR 138 and in the case of Rabindra Mohapatra and Ors. v. Souri Prasad Malla and Ors. reported in 1993 (II) OLR 102.