Whether court can take action for breach of injunction against person not party to suit?

 We feel wholly unable to accept the construction suggested of the expression "person guilty of disobedience" in the clause. The reason for the variation in the phraseology employed in cls. (1) and (3) of O. 39, r. 2 is not far to seek. Under the law when an order of injunction is passed, that order is binding on and enforceable not merely against the persons on nominee impleaded as a party to the suit and against whom the order is passed but against "the agents and servants, etc." of such a party. If such were not the law, orders of injunction would been rendered nugatory, by their being contravened by the agents and servants of parties. For that reason, the law provides that in order that a plaintiff might seek to enforce an order against a servant or an agent of the defendant, these latter need not be added as defendants to the suit and an order obtained specifically against them - an order against the defendants sufficing for this purpose. If such agents or servants, etc., are proved to have formal notice of order and they disobey the injunction, they are liable to be proceeded against for contempt, without any need for a further order against them under O. 39. r. 2(1). This legal position is brought out by the terms of an injunction order set out in Form 8 to Appendix F to the Code which reads : "The Court doth order that an injunction be awarded to restrain the defendant C. D., his servants, agents and workmen, from ..................". It is not suggested that the form which the order of the Subordinate Judge took in this case, departed from this model.

28. If such is the scope of an order for injunction, it would be apparent that the expression "person" has in O. 39, r. 2(3) been employed merely compendiously to designate everyone in the group "Defendants, his agents, servants and workmen" and not for excluding any defendant against whom the order of injunction has primarily been passed. 

29. The matter may also be approached from a broader angle. Where a Court is empowered by statue to issue an injunction against any defendant, even if the defendant be the State - the provision would be frustrated and the power rendered ineffective and unmeaning if the machinery for enforcement specially enacted did not extend to every one against whom the order of injunction is directed. Apart, therefore, from a critical examination of the phraseology of O. 39. r. 2(3), the obligation on the part of the State of obey the injunction and be proceeded against for disobedience if it should take place would appear to follow by necessary implication. As Maxwell (Maxwell on Interpretation of Statutes, 10th Edition, 140. Cf. Moor v. Smith, (1859) 28 L.J.M.C. 126 puts it "The Crown is sufficiently named in a statue when an intention to include it is manifest".

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 83 of 1956

Decided On: 20.09.1960

The State of Bihar Vs. Sonabati Kumari

Hon'ble Judges/Coram:

J.L. Kapur, K. Subba Rao, M. Hidayatullah, N. Rajagopala Ayyangar and S.K. Das, JJ.

Author: N. Rajagopala Ayyangar, J.

Citation: MANU/SC/0002/1960,1961 AIR 221, 1961 SCR (1) 728

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Whether transferee pendent lite can be added as party to suit if declaration is sought in respect of property transferred to him?

 I have given my thoughtful consideration to the submissions advanced at bar by learned counsel for both the parties and also to the legal position, as set out by the Apex Court in the case of Amit Kumar Shaw (Supra). In paragraph No. 12 of the said Judgment, it was held as follows :-

"12. Under Order 22 Rule 10, no detailed inquiry at the stage of granting leave is contemplated. The Court has only to be prima facie satisfied for exercising its discretion in granting leave for continuing the suit by or against the person on whom the interest has devolved by assignment or devolution. The question about the existence and validity of the assignment or devolution can be considered at the final hearing of the proceedings. The Court has only to be prima facie satisfied for exercising its discretion in granting leave for continuing the suit."

8. Whereas, in paragraph No. 16 of the said Judgment, it was held as follows :-

"16. The doctrine of lis pendens applies only where the lis is pending before a court. Further pending the suit, the transferee is not entitled as of right to be made a party to the suit, though the court has a discretion to make him a party. But the transferee pendente lite can be added as a proper party, if his interest in the subject-matter of the suit is substantial and not just peripheral. A transferee pendente lite to the extent he has acquired interest from the defendant is vitally interested in the litigation, where the transfer is of the entire interest of the defendant; the latter having no more interest in the property may not properly defend the suit. He may collude with the plaintiff. Hence, though the plaintiff is under no obligation to make a lis pendens transferee a party, under Order 22 Rule 10, an alienee pendente lite may be joined as party. As already noticed, the court has discretion in the matter, which must be judicially exercised and an alienee would ordinarily be joined as a party to enable him to protect his interests. The court has held that a transferee pendente lite of an interest in immovable property is a representative-in-interest of the party from whom he has acquired that interest. He is entitled to be impleaded in the suit or other proceedings where his predecessor-in-interest is made a party to the litigation; he is entitled to be heard in the matter on the merits of the case."

[Emphasis Supplied]

9. Thus, as per this legal position, at the stage of deciding the application for impleadment filed by the alienee, the Trial Court has only to be prima facie satisfied as to whether such alienation has really taken place and whether the presence of such alienee will help to protect the interest of the Defendants.

IN THE HIGH COURT OF BOMBAY

Writ Petition No. 687 of 2015

Decided On: 30.01.2018

 Siddhi Promoters  Vs.  Anita Krishnarao Shirolkar and Ors.

Hon'ble Judges/Coram:

Dr. Shalini Phansalkar Joshi, J.

Citation: 2018(3) MHLJ 595

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Whether tenant can challenge eviction suit on ground that co-owner is not made party is suit?

 It is no longer res integra and is settled by this Court in Sri Ram Pasricha v. Jagannath and Ors. MANU/SC/0473/1976 : (1976) 4 SCC 184, Dhannalal v. Kalawatibai and Ors. MANU/SC/0565/2002 : (2002) 6 SCC 16 and India Umbrella Manufacturing Co. and Ors. v. Bhagabandei Agarwalla (dead) by L.Rs. Savitri Agarwalla (Smt.) and Ors. MANU/SC/0002/2004 : (2004) 3 SCC 178 that a suit for eviction of a tenant can be maintained by one of the co-owners and it would be no defence to the tenant to question the maintainability of the suit on the ground that the other co-owners were not joined as parties to the suit. The judicially propounded proposition is that when the property forming the subject matter of eviction proceedings is owned by several co-owners, every co-owner owns every part and every bit of the joint property along with others and thus it cannot be said that he is only a part owner or a fractional owner of the property and that he can alone maintain a suit for eviction of the tenant without joining the other co-owners if such other co-owners do not object. In the contextual facts, not only the compromise decree, as aforementioned, has declared the Appellants to be the joint owners of the suit premises, their status as such has not been questioned at any stage by anyone interested in the title thereto.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 4309 of 2017 

Decided On: 21.03.2017

Om Prakash Vs.  Mishri Lal (dead) represented by his LR. Savitri Devi and Ors.

Hon'ble Judges/Coram:

Arun Mishra and Amitava Roy, JJ.

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Whether legal representatives of defendant who died prior to filing of suit can be added as party to suit?

As mentioned supra, it is only if a Defendant dies during the pendency of the suit that the provisions of Order 22 Rule 4 of the Code can be invoked. Since one of the Defendants i.e. Defendant No. 7 has expired prior to the filing of the suit, there is no legal impediment in impleading the legal representatives of the deceased Defendant No. 7 Under Order 1 Rule 10 of the Code, for the simple reason that the Plaintiff in any case could have instituted a fresh suit against these legal representatives on the date he moved an application for making them parties, subject of course to the law of limitation. Normally, if the Plaintiff had known about the death of one of the Defendants at the time of institution of the suit, he would have filed a suit in the first instance against his heirs or legal representatives. The difficulty that the High Court experienced in granting the application filed by the Plaintiff Under Order 1 Rule 10 of the Code discloses, with great respect, a hyper-technical approach which may result in the miscarriage of justice. As the heirs of the deceased Defendant No. 7 were the persons with vital interest in the outcome of the suit, such applications have to be approached keeping in mind that the Courts are meant to do substantial justice between the parties and that technical Rules or procedures should not be given precedence over doing substantial justice. Undoubtedly, justice according to the law does not merely mean technical justice but means that law is to be administered to advance justice.

15. Having regard to the totality of the narration made supra, there is no bar for filing the application Under Order 1 Rule 10, even when the application Under Order 22 Rule 4 of the Code was dismissed as not maintainable under the facts of the case. The legal heirs of the deceased person in such a matter can be added in the array of parties Under Order 1 Rule 10 of the Code read with Section 151 of the Code subject to the plea of limitation as contemplated Under Order 7 Rule 6 of the Code and Section 21 of the Limitation Act, to be decided during the course of trial.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 15549 of 2017 (Arising out of SLP (C) No. 31212 of 2014)

Decided On: 03.10.2017

Pankajbhai Rameshbhai Zalavadia Vs. Jethabhai Kalabhai Zalavadiya (deceased) 

Hon'ble Judges/Coram:

Arun Mishra and Mohan M. Shantanagoudar, JJ.

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Whether dead person can be party to suit?

It is necessary to lay stress on the words "any right.... is alleged to exist" in both the rules. Both Rr. 1 and 3, in my opinion, contemplate living plaintiffs and defendants. When a person dies, the right to sue survives if it is capable of survival to his legal representatives and exists in them and not in the dead man. Rules 1 and 3 of O. 1, Civil P.C. no doubt apply to a case where the right has come into existence by way of survival, but the plaintiff or the defendant, as the case may be, must then be dead person's legal representatives at the time of the presentation of the plaint and not the dead person. The maxim actio personalis moritur cum persona has exceptions, the procedure in respect of which is provided by O. 22, Civil P.C., which says that where a right to sue survives in favour or against a dead person, that right can be enforced by or against the legal representatives of the dead person. If a person dies before the suit is instituted against him, the right to sue or be sued is not an existing right but a right which has survived, and persons competent to sue or be sued are the legal representatives in whom or against whom alone the right to sue exists under the provisions of R. 1 or R. 3 of O. 1, Civil P.C. When, therefore, a suit is filed against a dead man, it is a nullity. Neither Order 1, nor O. 22, Civil P.C. applies to enable a person to sue a dead man. Order 1, Civil P.C., deals with parties to a suit; it does not and cannot contemplate a dead person as a party to a suit. If O. 1 does not permit the filing of a suit against a dead person, as I hold it does not, it follows that o. 1, R. 10, Civil P. 0., cannot apply. Order 1, Rule 10, Civil P.C., begins with the words "Where a suit has been instituted in the name of the wrong person as plaintiff......." "When a suit is filed against a dead man, it cannot be said that it has been filed against a wrong person. I am aware of the fact that some High Courts in India have treated a dead person as a wrong person, but with respect to the learned Judges who have so treated a dead person, I am unable to adopt that view. There is a clear distinction between a right which exists and a right which survives. I have no difficulty in coming to the conclusion that where a suit has been filed against a dead man, the Court is powerless to act under any of the provisions of the Civil Procedure Code, in order to dispose of it according to law, because no rights exist against a dead person, but if they survive, they come to exist in the legal representatives who alone can sue or be sued.
IN THE HIGH COURT OF SIND

Municipal Corporation of Karachi V. Baradio Jumoo Mughal

Date: 21.12.1944

Citation:AIR(33) 1946 Sind 23

Thadani, J.

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Whether a person who is commercially interested in outcome of suit can be added as party to suit?

In the leading English case of Moser v. Marsden, Lindly L.J. has held that a party who is not directly interested in the issues between the plaintiff and the defendant but is only indirectly or commercially affected cannot be added as a defendant because the Court has no jurisdiction under the relevant rule to bring him on record even as a proper party. The position is no different under the Indian law. As laid down by this Court, "in a suit relating to property in order that a person may be added as a party, he should have a direct interest as distinguished from a commercial interest in the subject-matter of the litigation." (See Razia Begum v. Sahebzadi Anwar Begum). In Ramesh Hirachand Kundanmal v. Municipal Corporation of Greater Bombay 1992 AIR SCW 846 this Court has held (SCC p. 531, para 14) (at page 851 (of AIR SCW):

"It can not be said that the main object of the rule is to prevent multiplicity of actions though it may incidentally have that effect .......... It is, therefore, necessary that the person must be directly or legally interested in the action in the answer, i.e. he can say that the litigation may lead to a result which will affect him legally that is by curtailing his legal rights. It is difficult to say that the rule contemplates joining as a defendant a person whose only object is to prosecute his own cause of action."
11 A. It will be seen that in paragraph 11 of the Judgment, the Supreme Court relied on its earlier Judgment inMANU/SC/0003/1958Razia Begum, v. Sahebzadi Anwar Begum, wherein the Supreme Court pointed but that an application for addition can be allowed only when a person will be directly or legally interested in the matter. A person who is commercially involved shall not be allowed to be added as a party. The Supreme Court pointed that a person who wants to prosecute his own cause of action must file a suit separately usually he cannot be added as party in the suit filed by another person, as the law is that the plaintiff is the dominus litis.

IN THE HIGH COURT OF GAUHATI

Civil Revision Nos. 371, 372, 373 and 374 of 1993

Decided On: 29.08.1997

 Laxmanlal Jee Mandir
Vs.
 Laxmiram Agarwalla and Anr.

Hon'ble Judges/Coram:
J.N. Sarma, J.
Citation: AIR 1998 Gauhati 89

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Whether third party can become party in contempt of court proceeding without consent of contemnor?

It is necessary to notice, that certain counsel, appeared on their own. We enquired from them, whether they were duly authorised by Sri Justice C.S. Karnan, and were in possession of a power of attorney to represent him. They had no such authorization. These learned counsel submitted, that they proposed to file impleadment application on behalf of certain organization. The oral prayer for impleadment is rejected.

5. Since contempt proceedings are a matter strictly between the Court and the alleged contemnor, anyone who enters appearance and disrupts the proceedings of this case in future, should understand that he/she can be proceeded against, in consonance with law. All that we need to say is, that no one should appear in this matter, without due consent and authorization.

IN THE SUPREME COURT OF INDIA

SUO MOTU CONTEMPT PETITIONC NO. 1 OF 2017

Date of Order: 13.02.2017

Appellants: In Re: Sri Justice C.S. Karnan

Hon'ble Judges/Coram:
J.S. Khehar , C.J., Dipak Misra, J. Chelameswar, Ranjan Gogoi, Madan B. Lokur, Pinaki Chandra Ghose and Kurian Joseph, JJ.

Citation:(2017) 2 SCC 756

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Whether a person can be held guilty for breach of injunction order even if he was not party to suit?

The respondent set up a case that the owner of the disputed premises is Smt. Savita Singh and the respondent No. 3 has denied to be present at the site during the period when the outlets in question were closed by filling earth. The architect who was working at the instance of respondent No. 3 had filed his affidavit and stated that he had filled the strip of land with earth at the instance of respondent No. 3. The respondent No. 3 stated that he had been away from Dehradun at the relevant time and also said that the petitioner has no right of easement. Now, after the judgment of the civil court decreeing the petitioners' suit for injunction accepting the easementary right, it is no more open to the respondent to plead otherwise and deny that there is no easementary right of flowing rain and flood water through the disputed outlets. The technical plea raised is that owner of the premises is Smt. Savita Singh and the respondent is not the owner and he has no concern with the same. The judgment of the learned Civil Judge shows that he mainly proceeded on placing reliance on 1962 ALJ 201 (supra) and has not noticed the relevant amendments made in the Code otherwise he would have invoked the inherent jurisdiction under O. 39, R. 2A. The question whether an agent of the defendant can be proceeded against in a proceeding under 0. 39, R. 2A of the Code as amended by 1976 Act, the Patna High Court in MANU/BH/0067/1983 Ram Pd. Singh v. Subodh Pd. Singh has held that a person is liable to be proceeded against under O. 39, R. 2A of the Code even if he was not presently party to the suit provided he is shown to be the agent or servant of the defendant and to have violated the orders of the Court in spite of knowledge that there was such an order. The respondent No. 3 is the husband of the owner of the premises. The architect stated on affidavit that the apertures were closed at the instance of the respondent No. 3. It is wholly immaterial whether the respondent was personally present at the time of actual closing of the outlets or not and whether he was a party in the suit or not.

IN THE HIGH COURT OF ALLAHABAD

Civil Misc. Writ Petition No. 19415 of 1988

Decided On: 13.07.1992

 K.L. Virmani  Vs.  IIIrd Additional Dist. Judge, and others

Hon'ble Judges/Coram:
N.L. Ganguly, J.
 Citation : AIR 1992 All 326

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Whether court can grant injunction against person who is not party to suit ?

There is no privity of contract between the
plaintiff and the Limited Liability Partnership which is the owner of the suit
property. Of course, the defendants are some of the partners of the said Limited
Liability Partnership firm. Plaint does not disclose that those defendants were
authorised by the said Limited Liability Partnership firm to enter into any
transaction relating to the suit property as agents of the said Limited LiabilityPartnership. No case of fraud has been made out against the defendants for
attracting the other provisions of the Limited Liability Partnership Act, 2008,
such as Section 30 etc.
Thus, on reading the pleadings of the plaintiff as a whole, it appears to us
that there is no privity of contract between the plaintiff and the owner of the said
property viz., the Limited Liability Partnership firm. As such, we hold that even if
the ad interim order of injunction which was passed by the learned Trial Judge is
not disturbed by us, still then the Limited Liability Partnership firm cannot be
held to be bound by the said injunction order. The said Limited Liability
Partnership firm is not even made a party to the suit.
Section 3 of the Limited Liability Partnership Act, 2008 says that a limited
liability partnership is a body corporate formed and incorporated under the said
Act and is a legal entity separate from that of the partners. Section 14 of the said
Act provides that on registration, a limited liability partnership shall, by its
name, be capable of suing and being sued. The title deed which is annexed to the
injunction application shows that the Limited Liability Partnership firm is a
registered partnership firm. As such, we have no hesitation to hold that the said
Limited Liability Partnership firm is a separate entity which is a body corporate
and is capable of being sued in its own name. The said Limited Liability
Partnership firm has not been impleaded as a party in this proceeding. No relief
has been claimed against the said Limited Liability Partnership firm.
Since we are of the prima facie view that there is no privity of contract
between the plaintiff and the owner of the suit property viz., the Limited Liability
Partnership firm, we hold that the ad interim relief by way of injunction which is
prayed for by the plaintiff cannot be granted in the instant case for the simple
reason that even if such ad interim order of injunction is maintained, still then,
the Limited Liability Partnership firm, which is not a party in the said proceeding,cannot be restrained from dealing with the said property by virtue of such
interim order passed by the learned Trial Court.
IN THE HIGH COURT AT CALCUTTA
 CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
Present:
The Hon’ble Justice Jyotirmay Bhattacharya
AND
The Hon’ble Justice Ishan Chandra Das
 F.M.A.T. 481 of 2016
 with
 CAN 4980 of 2016
 Rajesh Baid & Anr.
 v
 Mohammad Ibrahim

Judgement On : 20-07-2016.
Citation:AIR 2016 Cal 344

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Whether review petition by stranger to compromise decree is tenable?

In   that   view   of   the   matter,   this
Court   is   of   the   opinion   that   the   review
application deserves no consideration.   This
Court is bound by the ratio laid down in two
judgments delivered at Principal Seat, cited
across   the   bar   by   the   learned   counsel
appearing for the respondents in the case of
Khalil Haji Bholumiya Salar (cited supra) and
also in the case of Ramkrishna Shridhar & Ors
(cited supra) wherein the view is taken that
stranger   to   the   suit   is   a   stranger   to   the
agreement of compromise and he cannot file an
application   either   in   the   suit   or   in   the
appeal proceedings to challenge a compromise
decree as he is not a party to the suit, bar
under  Rule   3A  of   Order   23  of  CPC   cannot   be
extended to him, said provision must confine
only   to   the   parties   to   the   suit   who   are
parties to the compromise agreement, stranger
to   a   compromise   decree   cannot   file   an

application   in   a   suit   or   an   appeal   to
challenge   a   compromise   as   not   being   lawful,
but   must   file   a   separate   suit   for   the
purpose.   
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CIVIL APPLICATION NO. 5416 OF 2012
IN 
SECOND APPEAL NO. 356 OF 2001
WITH 
CIVIL APPLICATION NO. 5417 OF 2012 
Gaurishankar s/o.Rukhmeshchandra Mishra,  

V
 Asaram s/o. Shankar Jagdale,  

      CORAM:  S.S.SHINDE, J.  
      
Dated : 30.08.2016 
Citation:2016 (6) ALLMR 378,2017(1) MHLJ 122

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Whether court can call party to suit for cross examination in respect of affidavit filed along temporary injunction application?

A bare perusal of the provisions of Order XIX, Rule 2, would make it clear that the question of ordering attendance for cross- examination of the deponent arises only in cases where the third party affidavits are filed in support of the cases of the respective parties. The language employed in the provision would not indicate conferring of any power on the Court to call a person swearing the affidavit filed in support of the petition, for cross- examination. The affidavit filed in support of the petition shall not be treated, as an affidavit filed by way of evidence, and in this context, it would be relevant, if a reference is made to the provisions of Section 3 of the Indian Evidence Act, 1872, which defines "evidence" to mean and include all statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry, such statements are called oral evidence. In the present case, the respondents- defendants filed the petition under Order XIX, Rule 2 C.P.C. to direct the petitioner-plaintiff No. 1 to come to the Court for the purpose of cross-examination. The question of applicability of the provisions of Order XIX, Rule 2 C.P.C. would arise only in cases where an affidavit was filed in support of the cases of the respective parties i.e. either on behalf of the plaintiff or on behalf of the defendant, by way of evidence, but certainly not an affidavit filed in support of a petition. Since the affidavit filed in support of a petition cannot be treated as evidence, the present petition filed by the respondents-defendants under Order XIX, Rule 2 C.P.C. seeking to summon the deponent of the affidavit filed in support of the petition for temporary injunction, was not maintainable, and more so when it is not the case of the respondents- defendants that they intended to summon petitioner-plaintiff No. 1 because he had sworn to the affidavit by way of evidence to support the case of the plaintiffs. The law is well settled that when affidavits are filed in a proceeding under Order XXXIX, Rule 1 C.P.C. or any other proceedings, and in case the Court entertains a doubt, with regard to the identity of the person or persons who gave the affidavit, then it has the power and discretion to order the attendance of the deponent of the affidavit, for cross- examination so as to come to a just concision, to determine such petition. In such situations, the order passed by the Court below to summon the deponent for cross-examination cannot be faulted and such orders, can neither be said to be illegal nor beyond the competence of the Court.

10. In the above view of the matter, it has to be held that the present application filed by the respondents-defendants under Order XIX Rule 2 C.P.C. is not maintainable, and the Court below was not justified in ordering the present application holding that the respondents-defendants counsel is entitled to cross-examine petitioner-plaintiff No. 1 who swore to the affidavit filed in support of the petition for grant of temporary injunction, and more so when the present application, does not fall within the ambit and scope of Order XIX Rule 2 C.P.C.

Andhra High Court

Pathange Mohan Krishna Rao vs Smt Navale Sreevani And Others on 3 June, 2016

        

 
HONOURABLE SRI JUSTICE A.RAJASHEKER REDDY             

C.R.P.No.2046 OF 2016   

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Whether court can grant temporary injunction against non party to suit?

We agree with the contentions advanced by the
learned senior counsel appearing on behalf of the
appellants. The original suit instituted by the
plaintiff-respondents against late Gangadas Pal
had abated vide order of the learned subordinate
judge, Alipore dated 30.11.1973. The said order
has attained finality as no appeal has been filed
questioning the correctness of the same. By order
dated 07.07.2006 passed by the learned Subordinate
Judge, the property in question of late Gangadas
Pal was added as part to the suit schedule
properties by way of an amendment to the plaint by
the time his legal heirs had already acquired
intermediary rights under Section 6 of the West
Bengal Estates Acquisition Act, 1953. The heirs of
late Gangadas Pal were not made parties to the
said Title Suit proceedings. On 03.07.2006, the
learned subordinate judge passed an order granting
temporary injunction restraining the parties to
the suit from alienating or transferring the suit
property. A perusal of “Annexure P/10” which is
the Information Slip dated 17.02.2010 issued by
the office of the learned Trial Court in Title
Suit No. 121 of 1962, makes it amply clear that
the heirs of late Gangadas Pal were not made
parties to the suit. The appellant Housing Board
purchased the land in question from the heirs of
late Gangadas Pal on 19.08.2008, as is evidenced
from the conveyance deed “Annexure P-9”. The
appellant Housing Board was not a party to the
Title Suit at any point of time. It has purchased
the land in question from its owners. This
property was included in the suit schedule
properties by way of amendment to the plaint after
an application was allowed by order dated
07.07.2006. The plaintiffs-respondents herein did
not have any right to get the said land included
as part of the suit schedule properties for
partition, and the learned Subordinate Judge erred
in allowing the application to amend the suit
schedule to include the property in question. The
learned Subordinate Judge has erred in passing
order of temporary injunction under Order XXXIX
Rules 1 and 2 of the Code of Civil Procedure,
1908, in respect of the property in question
after it was included to the suit schedule as
order of temporary injunction can be granted
against only the parties to the suit property.
Further, the grant of police protection without
impleading the appellants to the original suit
proceedings is also not legally permissible and
the therefore the said order is liable to be set
aside. The High Court ought to have considered the
relevant fact that the appellants were not parties
to the suit, and the suit had abated as against
late Gangadas Pal. Thus, the order of temporary
injunction passed by the learned Subordinate Judge
on 03.07.2006 does not apply to the land in
question which was sold to the appellant Housing
Board.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS.7209-7210 OF 2015
(Arising Out of SLP (C) Nos.5902-5903 of 2015)
BENGAL AMBUJA HOUSING
DEVELOPMENT LTD. … APPELLANT
Vs.
PRAMILA SANFUI AND ORS. …RESPONDENTS
WITH
CIVIL APPEAL NOS. 7211-7212 OF 2015
(Arising Out of SLP (C) Nos.5906-5907 of 2015)
WEST BENGAL HOUSING BOARD ……APPELLANT
Vs.
PRAMILA SANFUI AND ORS. …RESPONDENTS
Citation: 2016(4) MHLJ 54

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Whether court can grant temporary injunction against person who are not party to suit?

We agree with the contentions advanced by the learned senior counsel appearing on behalf of the appellants. The original suit instituted by the plaintiff-respondents against late Gangadas Pal had abated vide order of the learned subordinate judge, Alipore dated 30.11.1973. The said order has attained finality as no appeal has been filed questioning the correctness of the same. By order dated 07.07.2006 passed by the learned Subordinate Judge, the property in question of late Gangadas Pal was added as part to the suit schedule properties by way of an amendment to the plaint by the time his legal heirs had already acquired intermediary rights under Section 6 of the West Bengal Estates Acquisition Act, 1953. The heirs of late Gangadas Pal were not made parties to the said Title Suit proceedings. On 03.07.2006, the learned subordinate judge passed an order granting temporary injunction restraining the parties to the suit from alienating or transferring the suit property. A perusal of “Annexure P/10” which is the Information Slip dated 17.02.2010 issued by the office of the learned Trial Court in Title Suit No. 121 of 1962, makes it amply clear that the heirs of late Gangadas Pal were not made parties to the suit. The appellant Housing Board purchased the land in question from the heirs of late Gangadas Pal on 19.08.2008, as is evidenced from the conveyance deed “Annexure P-9”. The appellant Housing Board was not a party to the Title Suit at any point of time. It has purchased the land in question from its owners. This property was included in the suit schedule properties by way of amendment to the plaint after an application was allowed by order dated 07.07.2006. The plaintiffs-respondents herein did not have any right to get the said land included as part of the suit schedule properties for partition, and the learned Subordinate Judge erred in allowing the application to amend the suit schedule to include the property in question. The learned Subordinate Judge has erred in passing order of temporary injunction under Order XXXIX Rules 1 and 2 of the Code of Civil Procedure, 1908, in respect of the property in question after it was included to the suit schedule as order of temporary injunction can be granted against only the parties to the suit property. Further, the grant of police protection without impleading the appellants to the original suit proceedings is also not legally permissible and the therefore the said order is liable to be set aside. The High Court ought to have considered the relevant fact that the appellants were not parties to the suit, and the suit had abated as against late Gangadas Pal. Thus, the order of temporary injunction passed by the learned Subordinate Judge on 03.07.2006 does not apply to the land in question which was sold to the appellant Housing Board.

Further, in the instant case, the order of temporary injunction dated 03.07.2006 was purportedly granted by consent is also not sustainable in law. The question of consent being given by either the appellant Housing Board or the predecessors in interest who are its vendors did not arise as they were not parties to the said suit. It is a well settled principle of law that either temporary or permanent injunction can be granted only against the parties to a suit. Further the purported consent order in terms of Order XXXIX of the Code of Civil Procedure is only binding as against the parties to the suit. In such a case, the order of the Subordinate Judge to grant police protection against the appellant Housing Board which is enjoying the property is erroneous in law and is liable to be set aside.

Supreme Court of India

Bengal Ambuja Housing ... vs Pramila Sanfui And Ors on 18 September, 2015

Bench: T.S. Thakur, V. Gopala Gowda, R. Banumathi

REPORTABLE

Citation;(2016)1 SCC 743

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Whether suit for partition is maintainable when all co-sharers are not party to suit?

We have already mentioned above that the plaintiff filed a suit for partition by joining the defendant nos. 1 and 2 therein as co-sharers in the suit property.

It is settled principle of law that the suit for partition cannot be maintained unless all the co-sharers are joined as parties in the suit.

Here is the case where we find that the defendant no.1 disclosed in his application for vacating the interim order that he had transferred part of his interest in the suit property to four purchasers as named above before filing of the suit.

Having regard to the fact that when one of the admitted co-sharers transferred a portion of his share in the suit property, the purchaser automatically became co-sharer by virtue of purchase. As such, in the absence of those co-sharers, the suit for partition cannot be held to be maintainable.

Kolkata High Court (Appellete Side)

Sk. Riyasat Ali vs Sk. Safiuddin Ahamed & Ors on 25 June, 2015

Author: Jyotirmay Bhattacharya
Citation;AIR 2015(NOC)1094 cal

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Whether court can draw adverse inference if party fails to enter into witness box?

Where a party to the suit does not appear into the witness box and states his own case on oath and does not offer himself to be cross examined by the other side, a presumption would arise that the case set up by him is not correct as has been held in a series of decisions passed by various High Courts and the Privy Council beginning from the decision in Sardar Gurbakhsh Singh v. Gurdial Singh and Anr. . This was followed by the Lahore High Court in Kirpa Singh v. Ajaipal Singh and Ors. AIR (1930) Lahore 1 and the Bombay High Court in Martand Pandharinath Chaudhari v. Radhabai Krishnarao Deshmukh AIR (1931) Bombay 97. The Madhya Pradesh High Court in Gulla Kharagjit Carpenter v. Narsingh Nandkishore Rawat also followed the Privy Council decision in Sardar Gurbakhsh Singh's case (supra). The Allahabad High Court in Arjun Singh v. Virender Nath and Anr. held that if a party abstains from entering the witness box, it would give rise to an inference adverse against him. Similarly, a Division Bench of the Punjab & Haryana High Court in Bhagwan Dass v. Bhishan Chand and Ors. , drew a presumption under Section 114 of the Evidence Act against a party who did not enter into the witness box.

Supreme Court of India

Vidhyadhar vs Manikrao & Anr. on 17 March, 1999

Equivalent citations: AIR 1999 SC 1441, 1999 (3) ALT 1 SC, JT 1999 (2) SC 183, 1999 (2) SCALE 93, (1999) 3 SCC 573, 1999 1 SCR 1168, 1999 (1) UJ 665 SC

Bench: S Ahmed, D Wadhwa

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Whether court can draw adverse inference if party fails to enter in witness box?

DW1 admitted that she had no document showing her
title to the suit plot and that the defendant had not obtained any
licence for construction of structure in the suit plot. It is not
known as to why the defendant, who was only 49 years old in the

year 2001 when the evidence was recorded, did not enter the
witness box. Adverse inference as drawn by the Trial Court and
the First Appellate Court appears to be absolutely correct. In the
case of “Vidhyadhar” (supra), the Apex Court has held that
where a party to the suit does not appear into the witness box and
state his own case on oath and does not offer himself to be cross-
examined by the other side, a presumption would arise that the
case set up by him is not correct. 


IN THE HIGH COURT OF BOMBAY AT GOA
SECOND APPEAL NO. 100 of 2004

Shri Damaciano Fernandes, Vs  St. Anthony's Chapel,

CORAM :- U. V. BAKRE, J.

Pronounced on : 13th June, 2014.
Citation;2015(2) ALLMR576

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