Full Judgment Text
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 2
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
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 2
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.