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RABINDRA KUMAR SHAW (DEAD) THR. LRS.

MANI CK LAL SHAW

OCTOBER 22, 2007

(DR.ARIJITPASAYAT ANDLOKESHWARSINGH B

PANTA, JJ.]

Code of Civil Procedure, 1908:

Or. 39, rr. 1,2 and 4-Application by plaintiff for interim c

injunction-Interim order of status quo granted-Application by defendant for vacating interim order-High Court rejecting application under Or. 3 9 rr. 1 and 2 for non-impleadment of necessary parties-Appeal-Meanwhile application for impleadment allowed by D trial court-HELD: Since High Court did not go into merits of the case, in view of changed circumstances, trial court would consider the matter afresh considering the effect of the impleadment of parties.

In the suit for declaration of title and injunction filed by the (>!"edecessor-in-interest of the appellants, the trial court granted an E interim order of status quo. In the appeal filed thereagainst by the defenda .. 1t-respondent, the High Court declined to interfere obsenring that them. -in application for injunction filed under Order 39, Rules 1and2 of tie Code of Civil Procedure, 1908 was yet to be decided

-I,'/>' on merits. S 1bsequently, on the application filed by the defendant- F respondent under Order 39 r.4 CPC for vacating the interim order, the High Court rejected the application for temporary injunction filed by the plaintiff, holding that since the plaintiff had not imp leaded the three sons of the defendant, who had become co-owners of the property along with the defendant, no effective order of injunction G could be passed in the absence of necessary parties in the suit.

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In the instant appeal, it was pointed out by the appelJants that the High Court did not decide the case on merits and passed the impugned order on the technical ground of non-impleadment of

601 H

A necessary parties but, thereafter, the three sons of the defendant were impleaded in the suit.

Disposing of the appeals and remitting the matter to the trial court, the Court

HELD: 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 and, therefore, the matter needs to be heard afresh. The High Court noted that it had not gone into the merits of the case; and only 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, the matter is remitted to the trial court to consider the same afresh. The effect of the impleadment of the three sons of the defendant, needless to say, shall be considered by the trial court. [Para 5] [604-C, D]

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 4926 of2007.

From the Judgment and final Order dated 23.03.2005 of the High Court at Calcutta in F.M.A. No. 1471 of2005.

WITH

C.A. No. 4927 of 2007.

Tapash Ray, Bijan Kumar Ghosh and S.K. Poddar for the Appellant.

Jaydeep Gupta, Satyajit Salia, V.D. Khanna and Rajkumar Laholi for the Respondents.

The Judgment of the Court was delivered by

DR. ARIJIT PASAYAT, J. I. Leave granted.

2. Challenge in these appeals is to the order passed by a Divisin 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,

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} RAB INDRA KUMAR SHAW (DEAD) THR. LRS. v. 603

MANI CK LAL SHAW [PASA Y AT, J.]

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2004 passed by learned Judge, 10th BENCH, City Civil Court at Calcutta A in Title Suit No.815 of2000 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 tenns of Order 39 B

,...

Rules 1 and 2 CPC was filed praying for an order of injunction and

t 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 c 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 D

I" 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 E the defendant for vacating the earlier interim order. The High Coun noted that it would have nonnally 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 original application for injunction on merits.

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But it was pointed out that in the suit, plaintiff had not impleaded the three F 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 G be dismissed in the absence of necessary parties to the suit and on that

l., 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/ H

A 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 B had passed the impugned order only on the technical ground that the three sons of the defendant who are co-owners had not been imp leaded. 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 imp leading the three sons of the defendant. The prayer was accepted by C the trial Judge by order dated 19.4.2005.

5. As the basic objection as to the maintainability of the applic; ation 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 D 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.

RP.

Appeals disposed of.