Temporary injunction cannot be granted where the suit itself is prima facie not maintainable

The Calcutta High Court subscribed to the view that if a suit prima facie appears to be not maintainable for want of a necessary party, an interim injunction cannot be granted since the co-sharers have been left out, in their absence the suit for partition is not maintainable.

The above ratio was passed by the Calcutta High Court in the case of Sajli Kishku Vs. Talamoyee Kishku and Ors. in FMAT No. 1083 of 2018 and CAN 8471 of 2018 decided on 09.08.2019.

Challenge

The appellant had filed a suit in the trial court below for partition and temporary injunction. The Defendants resisted the suit on the ground that the suit was not maintainable for non-joinder of necessary parties. The Defendants contended that their predecessor-in-interest Munsi Hemram had half-share in the suit property.  After the death of their predecessor in interest, defendant nos. 2 to 6 have been enjoying half of the suit property. Apart from the said defendants different heirs of Munsi Hemram have been owning and possessing the suit property. After the death of some of the direct heirs of the late Munsi Hemram their surviving heirs are necessary parties to the suit. Thus the Defendants submitted that the plaintiff was not entitled to any relief in the absence of these necessary parties.

The Court was called upon to adjudicate an application filed by the Plaintiff for grant of temporary injunction. The point that arose for consideration in the present appeal was whether an interim order could be passed in a suit in which the co-sharers have not been joined as parties which has the effect of rendering the suit not maintainable.

Held

The Calcutta High Court observed that the co-sharers which were left out from the array of parties also had a right to be impleaded as they stand at par with the defendants and were necessary parties in a suit for partition. The Court held that in the absence of a necessary party the suit is not maintainable unless the defect is cured.

In the above context, the Court reiterated that an order of injunction, like all interim orders,

is passed only in aid of the final order that may be passed in the suit. But where the suit itself is not maintainable the court should restrain itself from passing any interim order.

Therefore, the Court held that the defendants are not the only heirs of the late Munsi Hemram and since the co-sharers have been left out, in their absence the suit for partition is not maintainable. The Court further held that once the suit is not maintainable the question of passing any order of temporary injunction does not arise.