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

Citation: [2007] 11 S.C.R. 601 · Decided: 22-10-2007 · Supreme Court of India · Bench: ARIJIT PASAYAT · Disposal: Disposed off

Judgment (excerpt)

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RABINDRA KUMAR SHAW (DEAD) THR. LRS. 
A 
V. 
MANI CK LAL SHAW 
OCTOBER 22, 2007 
(DR.ARIJITPASAYAT ANDLOKESHWARSINGH 
B 
t-
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 
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on merits. S 1bsequently, on the application filed by the defendant-
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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 
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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. 
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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 Divisi~n 
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 
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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 Di

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