Passing an order in the absence of the necessary party is bad in the eyes of law: High Court Of Orissa

 IN THE HIGH COURT OF ORISSA AT CUTTACK WRIT APEAL No.45 OF 2009 From the judgment dated 21st February 2008 passed by learned Single Judge in O.J.C. No.71998) Gundam Manga Raju Versus Tirthabasi Mohapatrathrough LRs and others Advocate(s) appeared in this case: ….… For Appellant Mr. P.K. Kar Advocate For Respondents Mr. D.K. Nayak Advocate For Respondent Nos.1 & 2) Mr. D.K. Mohanty A.G.A. B.P. Routray J. CORAM : THE CHIEF JUSTICE JUSTICE B.P. ROUTRAY JUDGMENT 28th October 2021 1. The dispute pertains to an extent of land measuring area Ac.19.55 decimals of mouzaChakuli under Attabira P.S. The direction of the learned Single Judge dated 21st February 2008 for recording half share of the land in favour of Respondent No.2 has been assailed in the present appeal. W.A. No.409 2. The admitted facts of the case are that the then Gountia namely Gangadhar Satapathy settled the land in favour of Abhimanyu Das by Gountia Lease Patta dated 6th November 1943 which was later confirmed by the Member Board of Revenue in Revenue Appeal No.98 53 54. Said Abhimanyu Das sold the land in question to Tirthabasi Mohapatra and Dhirabati Mohapatravide Registered Sale Deed No. 985 dated 4th April 1960. Subsequently Tirthabasi along with Abhimanyu sold the land to G. Janaki Rama RaoG. Gani Raju and another vide RSD No.2670 dated 30th March 1963. 3. When the consolidation operation started in the area Objection Case Nos.181 183 184 185 and 1881 were filed by the Respondent No.7. Objection Case No.182 1981 pertaining to area Ac.1.50 decimals out of total Ac.19.55 decimals was filed by the present Appellant. It is the case of the Appellant that she purchased the aforesaid land from her vendor G. Gani Raju vide RSD No.2255 dated 9th September 1980. The Consolidation Officer rejected all the objection cases by common order dated 26th February 1982. Being aggrieved by the order of the Consolidation Officer the Appellant filed Appeal Case No.139 1982 and Respondent No.7 filed Appeal Case Nos. 134 1982 135 1982 136 1982 137 1982 138 1982 and 140 1982 before the Deputy Director Consolidation of Holdings Sambalpur. All those seven appeals were allowed by a common order dated 29th January 1983 with the direction to record the purchased lands separately in the name of respective purchasers. As such final consolidation patta was issued in W.A. No.409 favour of the Appellant in respect of her land measuring area Ac.1.50 decimals in Consolidation Khata No.214. 4. Being aggrieved by the order of the appellate court Respondent Nos.1 and 2 filed revision before the Joint Commissioner Settlement and Consolidation Sambalpur in C.R. Case No.27 329 1984 which was dismissed. It was then challenged by Respondent Nos.1 and 2 before this Court in OJC No.71998. The learned Single Judge by order dated 21st February 2008 allowed the writ petition in favour of Respondent Nos.1 and 2. The relevant portion of the said order is reproduced below. “6. Heard learned counsel for the parties at length. Perused all the materials including the impugned order. Fact remains the petitioners by a joint regd. Sale deed purchased the lands way back in the year 1960. The lands having been acquired by them they should be treated as co tenants or joint owners. Only because petitioner No.2 is the wife it cannot be presumed that she was a benamidar. After abolition of benami transaction such a presumption consonance with law. However fact remains Dhirabati Petitioner No.2 has not alienated her share. Thus OP No.4 having purchased the land from petitioner No.1 by the regd. Sale deed on 03.05.1963 acquired only the share of Tirthabasi petitioner No.1. He cannot put any claim on the share of Dhirabati. is also not In view of the aforesaid clear position of law this Court has no hesitation to set aside the order passed by the Commissioner and directs accordingly. Consequently it is held that Dhirabati Petitioner No.2 being the owner in respect of the half of the lands purchased by her and she having not executed any sale deed the said lands should be recorded in her favour. W.A. No.409 With the aforesaid observation the writ petition is disposed of. The Consolidation Officer Atabira is directed to record the lands in favour of petitioner No.2 in consonance the observations in this order.” 5. It is submitted on behalf of the Appellant that Respondent Nos.1 and 2 preferred the revision as well as the writ petition without impleading her as a party. Despite the fact apparent on record that the revisional order dated 23rd February 1998 is against the order passed in Appeal Case No.139 1982 filed by the present Appellant the learned Single Judge has passed the impugned order in absence of necessary party. It is further submitted that since the purchase of land extending Ac.1.50 decimals out of Ac.19.55 decimals by the Appellant is not disputed she is a necessary party in the revision case as well as in the writ petition and the impugned order of the learned Single Judge which has been passed in her absence is thus bad in the eye of law. 6. It is worthwhile to mention here that this Court by order dated 10th August 2009 has directed to maintain statusquo in respect of the property in question. 7. Perusal of the records of the writ petition reveals that admittedly the present Appellant was not impleaded as a party in the writ petition. Similarly the copy of the order of the Joint Commissioner in C.R. Case No.27 329 1984 as impugned in the writ petition does not reveal the name of the present Appellant in the array of parties therein. As seen from the order of the revisional court it is observed at para 7 that the revision is liable for rejection in absence of challenge to the order in respect of other Appeal Cases except Appeal Case No.134 1982. It is W.A. No.409 important to note here that the appellate order under challenge in the revision before the Joint Commissioner was the common order passed in seven Appeal Cases including the Appeal of present appellant. Despite such specific observations of the revisional court in the order impugned before the learned Single Judge he proceeded to set aside the revision order in absence of the present Appellant. Undoubtedly the Appellant is a necessary party in the writ petition for he is affected by any such observations made regarding grant of 50% share in favour of Dhirabati Respondent No.2). In other words the order of the learned Single Judge has effectively set aside the appellate court’s order dated 29th January 1983 passed in Appeal Case No.139 1982 also Babubhai Muljibhai Patel v. Nandlal Khodidas Barot 1974) 2 SCC 706] and Sarguja Transport Service v. STAT1 SCC 5]) W.A. No.409 B.K. Barik P.A. 9. It also appears from the record that the writ petitioners have misled the learned Single Judge by stating that all seven appeals were filed by Respondent No.7. 10. In view of the discussions made in the foregoing paragraphs since the impugned order has been passed in absence of the appellant who is a necessary party the same is liable to be set aside on that score only. Accordingly the order of the learned Single Judge dated 21st February 2008 is set aside. order as to costs. 11. The writ appeal is allowed but in the circumstances without any Judge (Dr. S. Muralidhar) Chief Justice W.A. No.409 

Summary: It has appeared from the records that the writ petitioners had misled the learned Single Judge. Such an opinion was held by The Hon’ble High Court of Orissa before The Hon’ble Mr. Chief Justice B.P. Routray in the matter of Gundam Manga Raju Vs. Tirthabasi Mohapatra (since dead) through LRs and others [W.A. No.45 of 2009].  The facts of the case were related to a land dispute. The learned single judge directed to record half a share of the land in favour of Respondent No.2, which was assailed in the present appeal. It was admitted that the Member, Board of Revenue in Revenue Appeal confirmed that Gangadhar Satapathy settled the land in favour of Abhimanyu Das by Gountia Lease Patta dated 6th November 1943. Later the Abhimanyu sold the land in question to Tirthabasi. An objection case was filed by Respondent No.7 when the consolidation operation started in that area. All the objection cases through a common order were rejected by the consolidation officer. It was reported that 7 appeals were allowed by a common order with the direction to record the purchased lands separately in the name of respective purchasers.  It was submitted that Respondent Nos.1 and 2 preferred the revision and the writ petition on behalf of the Appellant and excluded her as a party. The learned Single in her absence passed the impugned order. The perused records revealed that the present Appellant was not impleaded as a party in the writ petition. Moreover, the learned Single Judge was misled since the writ petitioners stated that all seven appeals were filed by Respondent No.7.  After thorough considerations, The Hon’ble Court ruled out that “… In view of the discussions made in the foregoing paragraphs, since the impugned order has been passed in absence of the appellant who is a necessary party, the same is liable to be set aside on that score only. Accordingly, the order of the learned Single Judge dated 21st February 2008 is set aside. The writ appeal is allowed, but in the circumstances without any order as to costs.” Click here to read the Judgment