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CASE NO.: Appeal (civil)  4926 of 2007

PETITIONER: Rabindra Kumar Shaw (dead) thr. Lrs

RESPONDENT: Manick Lal Shaw

DATE OF JUDGMENT: 22/10/2007

BENCH: Dr. ARIJIT PASAYAT & LOKESHWAR SINGH PANTA

JUDGMENT: J U D G M E N T

CIVIL APPEAL NO.  4926 OF 2007 (Arising out of SLP (C) No.19179 of 2005) (With Civil Appeal No. 4927 of 2007 (Arising out of S.L.P. (C) No.19180 of 2005)

Dr. ARIJIT PASAYAT, J.

1.      Leave granted.

2.      Challenge in these appeals is to the order passed by a  Division Bench of the Calcutta High Court allowing the appeal  filed by the respondent-Manick Lal Shaw. The appeal was filed  by the respondent who was the defendant in the suit for  declaration of title and permanent injunction. The same was  directed against the order dated 4th December, 2004 passed by  learned Judge, 10th BENCH, City Civil Court at Calcutta in  Title Suit No.815 of 2000 thereby rejecting the application  under Order 39 Rule 4 of the Code of Civil Procedure, 1908 (in  short the ’CPC’) filed by the defendant and allowing the  application under Order 39 Rules 1 and 2 filed by the  plaintiffs.  

3.      During the pendency of the suit, application in terms of  Order 39 Rules 1 and 2 CPC was filed praying for an order of  injunction and restraining the defendant from interfering with  the possession of the plaintiff in the suit property and from  taking forcible possession by breaking open the padlock in the  suit property. On such application, learned trial Judge granted  ad interim order of status quo. Against such order the  defendant filed an appeal before the High Court which was  heard by a Division Bench and the said Division Bench did not  interfere with the order as the main application for injunction  was yet to be decided on merits. Plaintiff filed an application  under Section 151 of CPC for enforcing the said ad interim  order of status quo with the help of police and the learned trial  Judge allowed the application. The defendant filed a revision  before the High Court but the High Court did not interfere with  the said order on the ground that so long as the ad interim  order was subsisting there was no reason for interference with  the order for implementation of the order.  Subsequently, an  application under Order 39 Rule 4 CPC was filed by the  defendant for vacating the earlier interim order. The High  Court noted that it would have normally remitted the matter to  learned trial Judge for consideration of the application under  Order 39 Rule 4 CPC and the written objection filed to the

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original application for injunction on merits. But it was  pointed out that in the suit, plaintiff had not impleaded the  three sons of the defendant who had admittedly become co- owners of the property along with the defendant and as such  no effective order of injunction can be passed in the suit in the  absence of all co-owners of the property. The High Court,  therefore, held that in the circumstances it was a fit case  where application for injunction filed by the plaintiff was to be  dismissed in the absence of necessary parties to the suit and  on that ground alone the application was dismissed.  The High  Court noted that it had not gone into the merits of the case  and only on the technical ground as noted above, the  application for temporary injunction was rejected. In view of  the dismissal of the appeal the application No.CAN 1209/2005  had become infructuous.   

4.      During hearing of the appeal, learned counsel for the  appellants who are the legal heirs of Rabindra Kumar Shaw,  the original plaintiff submitted that the High Court had not  decided the case on merits and had passed the impugned  order only on the technical ground that the three sons of the  defendant who are co-owners had not been impleaded. As a  matter of fact subsequently an application in terms of Order 1  Rule 10(2) read with Section 151 CPC was filed by the plaintiff  on 8.11.2005 for impleading the three sons of the defendant.  The prayer was accepted by the trial Judge by order dated  19.4.2005.  

5.      As the basic objection as to the maintainability of the  application no longer survives in view of the impleadment of  the three sons of the defendant, the matters need to  be heard  afresh. As noted above, the High Court noted that it had not  gone into the merits of the case and except on the technical  ground of non impleadment of the three sons of the defendant,  the application for temporary injunction was rejected. In view  of the changed circumstances we remit the matter to the trial  court to consider the matter afresh. The effect of the  impleadment of the three sons of the defendant, needless to  say, shall be considered by the trial court.  

6.      The appeals are accordingly disposed of. There will be no  order as to costs.