Calcutta High Court (Appellete Side)
Shiv Kumar Sharma & Ors vs Swapan Kumar Guha & Anr on 15 July, 2025
Author: Hiranmay Bhattacharyya
Bench: Hiranmay Bhattacharyya
D/L- 273 15/07/2025
Ct. No.-6 Aritra C.O. 2326 of 2024 Shiv Kumar Sharma & Ors.
Versus Swapan Kumar Guha & Anr.
Mr. Birendra Kumar Jha Mr. Manish Patra ...for the petitioner Mr. Kushal Chatterjee Mr. Oishik Chatterjee Mr. Manish Shukla Ms. Ivi Banerjee Ms. Dipa Singhal ....for the opposite party No.2 This application under Article 227 of the Constitution of India is at the instance of the plaintiffs and is directed against an order dated May 10, 2024 passed by the learned Civil Judge (Jr. Div.) at Bidhannagar, District- North 24-Parganas in Title Suit No.140 of 2004.
By the order impugned the application under Order 1 Rule 10 of the Code of Civil Procedure stood allowed.
The learned advocate appearing for the petitioner submits that the opposite party No.2 is not a necessary party in the suit and the learned trial judge without considering such fact allowed the prayer of the opposite party No.2 for being added as a party defendant in the instant suit.
Mr. Chatterjee, learned advocate appearing for the opposite party No.2 submits that the opposite party Nos.1 and 2 are the co-sharers in respect of an adjacent property 2 and the co-shares of that property have entered into a development agreement with a developer and are carrying on construction on such property. He further submits that the petitioner herein filed a writ petition before this Court alleging unauthorised construction by the opposite party No.2 herein. He submits that there is a dispute with regard to the identification of the plots and since the petitioner herein has filed a writ petition against the defendant No.2 alleging unauthorised construction, the opposite party No.2 is a necessary party in the suit.
The petitioners filed a suit for permanent injunction restraining the opposite party No.1 and his men and agents from demolishing the dilapidated room and raising any kind of new construction in its place by extending the area of the room in all dimension. The suit property as mentioned in the schedule of the plaint is all that one dilapidated tile shed room in Dag No.213/542 under Khatian No.55 earlier Holding No.427 present new Holding No.897 being premises No.95/2/1, Dakhindari Road, Kolkata-700048. The boundaries of the suit property has been specifically stated in the schedule of this plaint.
The opposite party No.2 is claiming to be a co-sharer in respect of the plot of land measuring about 9 cottahs under L.R. Dag No.213 corresponding to R.S. Dag No.213 which is recorded as Municipal premises No.897/A Dakshin Dari Road, Kolkata-700048.
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Thus, it appears that the suit property mentioned in the schedule of the plaint and the property in respect of which the opposite party No.2 herein are claiming title and interest are different premises.
That apart, the opposite party No.2 claims that the opposite party No.2 is a co-sharer in respect of an adjacent plot and not the property which is the subject matter of Title Suit No.140 of 2004. The opposite party No.2 claimed that the co-sharer of the adjacent property have entered into a development agreement with a developer. The cause of action of the instant suit is that the opposite party No.1 herein after the death of his father-in-law has trespassed into the room of the father of the plaintiff and was residing there as a trespasser once upon a time.
Merely because of the fact that the petitioner filed a writ petition against the opposite party No.2 alleging unauthorised construction by the opposite party No.2, the same cannot be a ground for adding the opposite party in a suit. The opposite party No.2 cannot be said to be a necessary or proper party in this suit.
It is well-settled that an application for addition of party cannot be allowed if the same would amount to enlarging the scope of the suit. It cannot be disputed that if the opposite party No.2 is added as a party defendant in the instant suit, undoubtedly the scope of the instant suit would get enlarged.
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For such reason, this Court is inclined to interfere with the order impugned. Accordingly the impugned order stands set aside. The application under Order 1 Rule 10(2) of the Code of Civil Procedure stands rejected.
CO 2326 of 2024 stands allowed.
There will be no order as to costs.
Urgent photostat certified copy of this order, if applied for, be supplied to the parties upon compliance with all requisite formalities.
(Hiranmay Bhattacharyya, J.)