Holding

The Supreme Court held that the High Court's order, based on a technical ground of non‑impleadment that no longer subsisted, must be set aside and the matter remitted to the trial court to be heard afresh.

Summary

The heirs of the deceased Rabindra Kumar Shaw filed a suit for declaration of title and a permanent injunction, and the trial court granted an interim status‑quo order. The defendant appealed, and the Calcutta High Court, without deciding the merits, dismissed the plaintiff's application for a temporary injunction on the ground that three of the defendant's sons, who had become co‑owners, were not impleaded. The plaintiff later impleaded those three sons by order of the trial court. On appeal, the Supreme Court observed that the High Court's dismissal was based solely on a technical defect that no longer existed. Consequently, the Court held that the matter must be heard afresh by the trial court, taking into account the newly impleaded parties. The appeals were disposed of and the case remitted to the trial court.

Issues considered

Whether an application for interim injunction under Order 39 CPC can be dismissed solely on the ground of non‑impleadment of necessary parties when such parties are later impleaded.
Whether the High Court erred in rejecting the injunction application without considering its merits.
Effect of the subsequent impleadment of co‑owners on the maintainability of the injunction application.

Legislation cited

Code of Civil Procedure, 1908s. Order 1 Rule 10(2), s. Order 39 Rules 1,2,4, s. Section 151

Subjects

interim injunctionimpleadmentOrder 39 CPCstatus quocivil procedureco‑ownerstemporary injunctionappellate jurisdiction

Judgment

y·~

RABINDRA KUMAR SHAW (DEAD) THR. LRS. A
V.
MANI CK LAL SHAW

OCTOBER 22, 2007
B
(DR.ARIJITPASAYAT ANDLOKESHWARSINGH
t- PANTA,JJ.]

Code ofCivil Procedure, 1908:
c
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 2 for non-impleadment ofnecessary
parties-Appeal-Meanwhile application for impleadment allowed by
D
trial court-HELD: Since High Court did not go into merits ofthe case,
in view ofchanged circumstances, trial court would consider the matter
afresh considering the effect of the impleadment ofparties.
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 impleaded 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.
~ ~.
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
602 SUPREME COURT REPORTS [2007] 11 S.C.R.

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
8 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
c 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]
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.
E WITH
C.A. No. 4927 of 2007.
Tapash Ray, Bijan Kumar Ghosh and S.K. Poddar for the Appellant.

F 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.
G 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,
H
}
RAB INDRA KUMAR SHAW (DEAD) THR. LRS. v. 603
y-~
MANI CK LAL SHAW [PASAYAT, J.]
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
granted ad interim order of status quo. Against such order the defendant c
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.
~,.
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
604 SUPREME COURT REPORTS [2007] 11 S.C.R.

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