RABINDRA KUMAR SHAW (DEAD) THR. LRS. v. MANICK LAL SHAW

Citation: [2007] 11 S.C.R. 601

Court: Supreme Court of India

Bench: ARIJIT PASAYAT, LOKESHWAR SINGH PANTA

Case summary

RABINDRA KUMAR SHAW (DEAD) THR. LRS. v. MANICK LAL SHAW.pdf

Judgment text

RABINDRA KUMAR SHAW (DEAD) THR. LRS. V. MANICK LAL SHAW OCTOBER 22, 2007 (DR. ARIJITPASAYAT ANDLOKESHWARSINGH t- PANTA,JJ. ] Code ofCivil Procedure, 1908: Or. 39, rr. 1,2 and 4-Application by plaintifffor interim injunction-Interim order of status quo granted-Application by defendant for vacating interim order-High Court rejecting application under Or. 39 rr. 1 and 2for non-impleadment ofnecessary parties-Appeal-Meanwhile applicationfor impleadment allowed by trialcourt-HELD: Since High Court did not go into merits ofthe case, in view ofchangedcircumstances, trial court would consider the matter afresh considering the effect ofthe impleadment ofparties. In the suit for declaration of title and injunction filed by the (>! "edecessor-in-interest ofthe appellants, the trial court granted an interim order ofstatus 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 Order39, Rules 1and2 oftie Code ofCivil Procedure, 1908 was yet to be decided on merits. S 1bsequently, on the application filed by the defendant- -I,'/>' 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 plaintiffhad not impleaded the three sons of the defendant, who had become co-owners of the property along with the defendant, no effective order ofinjunction could be passed in the absence of necessary parties in the suit. ~ ~. 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 necessary parties but, thereafter, the three sons of the defendant were impleaded in the suit.

Disposing ofthe appeals and remitting the matter to the trial court, the Court 8 HELD: The basic objection as to the maintainability of the application no longer survives in view ofthe impleadment ofthe three /'\ sons ofthe 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 ofthe changed circumstances, the matter is remitted to the trial court to consider the same afresh. The effect ofthe impleadment ofthe three sons ofthe 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 ofthe 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 ofthe Court was delivered by DR. ARIJIT PASAYAT, J. I. Leave granted. 2. Challenge in these appeals is to the order passed by a Divisi~n Bench of the Calcutta High Court allowing the appeal filed by the )-i 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, } RABINDRA KUMAR SHAW (DEAD) THR. LRS. v. 603 MANICKLAL SHAW [PASAYAT, J. ] 2004 passed by learned Judge, 10th BENCH, City Civil Court at Calcutta 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 1and 2 filed by the plaintiffs. 3.

During the pendency ofthe suit, application in tenns ofOrder 39 ,... Rules 1 and 2 CPC was filed praying for an order of injunction and t restraining the defendant from interfering with the possession ofthe 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 ofstatus 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 ofCPC for enforcing the said ad interim order ofstatus quo with the help ofpolice and the learned trial Judge allowed the application.

The defendant filed a revision before the I" 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 ofthe order. Subsequently, an application under Order 39 Rule 4 CPC was filed by 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. But it was pointed out that in the suit, plaintiffhad 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 ofall 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 plaintiffwas to 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 ofthe case and only on the technical ground as noted above, the application for temporary injunction was rejected. In view of the dismissal ofthe 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 ofthe defendant who are co-owners had not been impleaded.

As a matter offact subsequently an application in terms ofOrder 1Rule 10(2) read with Section 151 CPC was filed by the plaintiffon 8. 11. 2005 for impleading the three sons ofthe defendant. The prayer was accepted by the trial Judge by order dated 19. 4. 2005. 5. As the basic objection as to the maintainability ofthe applic;ation no longer survives in view of the impleadment ofthe 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 ofthe impleadment ofthe three sons ofthe 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.