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2025 DIGILAW 256 (CAL)

In the matter of : Shree Shree Iswar Sitaram Jew v. Subhodeep Ganguly

2025-07-09

SABYASACHI BHATTACHARYYA, UDAY KUMAR

body2025
JUDGMENT : 1. Heard learned Counsel appearing for the parties. 2. The present hearing arises out of three separate applications seeking extension of the time to file written objection to an injunction application filed in a suit challenging a deed in the Trial Court. 3. The short background is that the plaintiffs/appellants, being the appellant no.1 / deity and the appellant no.2, one Swapna Mukherjee, claiming to be a Shebait of the deity, filed a suit challenging a deed, in which an ad interim prayer for injunction at the behest of the plaintiffs / appellant was refused. Challenging the same, an appeal bearing FMA 929 of 2023 was preferred before this Court. By an order dated March 03, 2025, this Court had allowed the appeal on contest, thereby granting ad interim order of injunction restraining the defendants / respondents from acting on the strength of the impugned sale deed dated July 02, 2015 as well as from transferring, alienating and / or creating any third party interest or parting with possession in respect of the suit property till disposal of the injunction application pending in the Trial Court. 4. While doing so, this Court had also directed that the respondents shall file their respective written objections to the injunction application in the Court below, if not already filed, within three weeks from the said date, i.e., from March 03, 2025, whereupon the learned Trial Judge shall endeavour to dispose of the injunction application itself as expeditiously as possible in the interest of justice. 5. Learned Senior Counsels appearing for the respective applicants in CAN 3 of 2025 and CAN 4 of 2025 submit that although their written objections were affirmed within time and copies thereof were served also within time, the filing of the same was postponed till the next date of hearing of the injunction application in the Trial Court, which was previously fixed on June 10, 2025. 6. There were certain dates allotted by the learned Trial Judge in the interregnum which, however, according to the petitioners, not dates for hearing of the injunction application. It is submitted that the hearing of the injunction application was interdicted by applications for addition of party filed by the present proposed interveners, namely Raktima Chatterjee and others and Somesh Mukhopadhyay (who have filed affidavits-in- opposition to the present applications for extension) by filing put up petitions. 7. It is submitted that the hearing of the injunction application was interdicted by applications for addition of party filed by the present proposed interveners, namely Raktima Chatterjee and others and Somesh Mukhopadhyay (who have filed affidavits-in- opposition to the present applications for extension) by filing put up petitions. 7. It is contended that since the prayer is innocuous, this Court ought not to enter into the merits of the respective contentions of the parties, which shall be decided in the suit itself. 8. In view of the bona fides of the petitioners, it is submitted that the timeline for filing of the written objections, which have already been filed physically in the Trial Court but not accepted, be extended. 9. Learned Counsel appearing for the proposed interveners / objectors submit that they represent the true interest of the plaintiff / appellant no.1 / deity. Learned Counsel appearing for Raktima Chatterjee, one of the objectors, submits that in the interregnum, due to activities adverse to the interest of the deity on the part of the plaintiff / appellant no.1 Swapna Mukherjee, colluding with the defendants in the suit, the said Raktima Chatterjee along with certain other Shebaits were compelled to remove Swapna Mukherjee from the role of the authorized Shebait to represent the interest of the deity in the litigation. 10. It is submitted that applications for addition of party at the behest of Raktima Chatterjee and others and Somesh Mukhopadhyay are now pending in the Trial Court. Whereas Raktima and her co-applicants claim to be Shebaits of the deity, Somesh, the son of Swapna (plaintiff/appellant no. 2) seeks to be impleaded to protect the interest of the deity. 11. It is further submitted that the respondents /present applicants have sought extension on a mala fide basis. It is contended that the premise of the applications for extension is that the applicants were advised by counsel to file their respective written objections on the next date fixed for hearing of the injunction application, since otherwise the written objections might be misplaced, if filed on an “off-date”. However, the very premise of the said contention is negated by the conduct of the petitioners in the Trial Court. However, the very premise of the said contention is negated by the conduct of the petitioners in the Trial Court. It is pointed out from the photocopy of the order sheet of the suit from which the appeal arises, which is annexed to the affidavit-in-opposition filed by Raktima Chatterjee, that on April 07, 2025, the record of the suit was taken up for hearing of the temporary injunction petition. 12. The said order was preceded by an order dated March 26, 2025 when the record was put up on the basis of a put-up petition filed on behalf of the plaintiff no.1 by Raktima Chatterjee, who was representing the interest of the plaintiff no.1 /deity by this time. 13. The learned Trial Judge directed the “petitioner /plaintiff” (Raktima and her co-applicants) to communicate the next date, i.e., April 07, 2025, to the defendants and submit compliance accordingly. It is pointed out that in the order dated April 07, 2025, it is recorded that the matter was being taken up for hearing of the injunction application. 14. The learned advocate on behalf of plaintiff no.1 was also heard in part. 15. It is further contended that the Court recorded on April 07, 2025 that the learned advocate representing the defendant nos.1, 3 and 4 were also present in the course of hearing but from the record, no respective steps have been found to have been taken on their behalf. 16. The learned advocate representing plaintiff no.2 was also present on the said date and challenged the locus standi of the learned advocate representing the plaintiff no.1 / deity to appear in the matter. 17. By a subsequent order dated May 22, 2025, the application under Order I Rule 10(2) of the Code of Civil Procedure, 1908 (hereinafter referred to as “the Code”) was taken up, since due to certain unforeseen circumstances, the matter could not be taken up on the next date fixed, i.e., April 28, 2025. 18. It is pointed out that the Court recorded in its order dated May 22, 2025 that an affidavit of service was filed on behalf of the plaintiff no.1 along with the photocopy of postal receipts and postal track report and advocate’s letter addressed to defendant nos.1 to 4, which were kept on record. 19. 18. It is pointed out that the Court recorded in its order dated May 22, 2025 that an affidavit of service was filed on behalf of the plaintiff no.1 along with the photocopy of postal receipts and postal track report and advocate’s letter addressed to defendant nos.1 to 4, which were kept on record. 19. The learned Trial Judge, by the said order, further recorded that it was submitted by the contesting defendants that the plaintiff no.1 / deity was unrepresented and unless and until the impugned petition under Order I Rule 10(2) of the Code dated April 25, 2025 was disposed of, they would be prejudiced. 20. In the said order it was recorded that June 10, 2025 was fixed next for hearing the injunction petition in conjunction with the petition under Order I Rule 10 of the Code. 21. It is argued that despite the pendency of the application under Order I Rule 10 of the Code at the behest of Raktima Chatterjee and others in the Trial Court, such pendency does not deter Raktima Chatterjee and her co-applicant/Shebaits from representing the interest of the plaintiff / appellant no.1-deity in connection with the present applications. Learned Counsel appearing for Raktima Chatterjee and her co-applicants submits that even apart from being sought to be impleaded in their personal capacity, the said Raktima Chatterjee independently, as a Shebait of the plaintiff no. 1-deity, has a right to represent the interest of the deity, more so since such interest is not being represented properly by Swapna Mukherjee, the plaintiff no. 2. 22. Learned counsel appearing for Somesh Mukhopadhyay also supports the contentions of Raktima Chatterjee and submits that in the interest of justice, the injunction application ought to be decided early and the prayer for extension of time to file written objections ought to be turned down. 23. Upon careful consideration of the rival contentions of the parties, we find that the first question which arises before us is whether Raktima Chatterjee and her co-applicants and Somesh Mukhopadhyay have the locus standi, at least prima facie, to oppose the prayer for extension. 24. A factor which cannot be overlooked is that at the relevant point of time, when the appeal bearing FMA 929 of 2023 was disposed of, i.e., on March 03, 2025, neither Raktima Chatterjee nor Somesh Mukhopadhyay was in the picture. 24. A factor which cannot be overlooked is that at the relevant point of time, when the appeal bearing FMA 929 of 2023 was disposed of, i.e., on March 03, 2025, neither Raktima Chatterjee nor Somesh Mukhopadhyay was in the picture. The plaintiffs / appellants were the deity and Swapna Mukherjee, who is still plaintiff no.2 in the suit. 25. Seen from such perspective and taking a restricted view, neither Raktima Chatterjee, with her co- applicants nor Somesh Mukhopadhyay had any right of audience on the said date of disposal of the appeal and, as such, cannot turn the clock back and oppose the prayer for extension of time to file written objection which was granted by the order dated March 03, 2025. 26. On the other hand, we cannot overlook the proposition of law as cited by learned Counsel appearing for Raktima Chatterjee in the case of K. Senthilkumar VS. Principal Secretary to Government of Tamil Nadu and Others reported at 2021 SCC OnLine Mad 12402 where a learned Single Judge of the Madras High Court, inter alia, observed that it is the duty of the Court to ensure that the deity does not suffer and the Court should be astute to protect the interests of an idol in any litigation. The learned Single Judge used the expression that if there is an act of passive or active collusion of the concerned authorities who are supposed to represent the estate of the deity, such acts of “fences eating the crops” should be dealt with sternly. It was further observed that it is the duty of the Courts to protect and safeguard the properties of religious and charitable institutions from wrongful claims or misappropriation. 27. Although the said judgment was rendered in the context of a public charitable endowment (a temple), the underlying principle that a deity is a perpetual minor, which is a well-recognized legal fiction, and its interests are required to be protected by the Court, acting as guardian, cannot be gainsaid. 28. The principle that the Court acts as a guardian of all minors can very well be extended to a perpetual minor, i.e., a deity. 29. 28. The principle that the Court acts as a guardian of all minors can very well be extended to a perpetual minor, i.e., a deity. 29. Viewing from such perspective, we find that we are required at least prima facie to explore into the question whether Swapna Mukherjee is at present exclusively authorized to look after the interest of the deity, even without going into the merits of the addition of party application pending in the Court below. 30. We enter into such enquiry with a caveat that none of our observations shall be conclusive or binding at any stage of the suit and are only for the prima facie purpose of considering the locus standi of the objectors to oppose the prayer for extension of time. 31. We find that despite alleged service, which is borne out by the affidavit of service filed in Court by the petitioners, none appears on behalf of the plaintiff / appellant no.2 Swapna Mukherjee who filed the suit, which is couched in a manner that the said Swapna Mukherjee represents the interest of the deity as a Shebait. Of course, it may very well be said that Swapna Mukherjee may not be represented before us for umpteen number of circumstances beyond her control. However, fact remains that the deity would not be represented before us today unless either Raktima Chatterjee and her co-plaintiffs or Somesh Mukhopadhyay are heard, even on the minor question as to whether the time stipulated by this Court to file written objection to the injunction application ought to be extended or not. 32. Borrowing the principle that the Court is a guardian of all guardians in respect of minors, including perpetual minors, we accordingly allow the leeway to the said objectors Raktima Chatterjee and Somesh Mukhopahdyay, even without deciding whether they have a right to prosecute the suit in the Trial Court on behalf of the deity, at least to have an audience before us for the purpose of representing the interest of the deity in the absence of Swapna Mukherjee. 33. Hence, taking into consideration the arguments of both parties, we now deal with the question as to whether the prayer for extension of time to file objections to the injunction application in the Trial Court ought to be allowed. 34. 33. Hence, taking into consideration the arguments of both parties, we now deal with the question as to whether the prayer for extension of time to file objections to the injunction application in the Trial Court ought to be allowed. 34. It is trite law that directions in the nature as passed by our order dated March 03, 2025 while disposing of FMA 929 of 2023 are in the nature of orders in terrorem. 35. Thus, we do not find that the timeline stipulated for filing the written objections by the defendants/respondents were of such a mandatory nature that even this Court does not have the jurisdiction to exercise its power under Section 148 of the Code and look at a situation where it was justified for the applicants not to file their written objections in time. 36. From the circumstances of the case, we find that the original date fixed for hearing of the injunction application was June 10, 2025 when we had passed our order dated March 03, 2025. 37. However, subsequently the records of the suit were taken up by the learned Trial Judge on a put- up petition being filed by Raktima Chatterjee and others, on the basis of an application under Order I Rule 10 of the Code filed by her. In the order dated March 26, 2025, the said Raktima Chatterjee also purports to represent the plaintiff no.1 /deity. 38. The Trial Court recorded on the basis of the submission of Raktima Chatterjee that the said petitioner/plaintiff was directed to communicate the next date to the contesting defendants and submit compliance accordingly and fixed the next date on April 07, 2025. 39. Although learned Senior Counsel appearing for the petitioners submits that no such service was effected on defendant nos.1, 3 and 4, we find from the order dated April 07, 2025 that the Court recorded that the learned advocate representing defendant nos.1, 3 and 4 were present in course of hearing. Although it was observed by the learned Trial Judge that from the records, “no respective steps have been found in their behalf”. The expression “in their behalf” clearly indicates that the said observation does not pertain to the non- service of notice to the said defendants but rather speaks about no action having been taken on behalf of the defendant nos.1, 3 and 4. 40. The expression “in their behalf” clearly indicates that the said observation does not pertain to the non- service of notice to the said defendants but rather speaks about no action having been taken on behalf of the defendant nos.1, 3 and 4. 40. Contrary to the arguments of the present petitioners to the effect that the advocates representing the said defendants were present in Court by chance for other matters without prior notice on them regarding the date of the instant suits, we agree with the contention of the learned Advocate for Raktima Chatterjee that it was too much of a coincidence that the learned advocates representing the defendant nos.1, 3 and 4 as well as plaintiff nos.2 were present on the said date when the matter was taken up by the Trial Court. 41. It is apparent from the order dated April 07, 2025 that the learned advocate representing plaintiff no.2 Swapna Mukherjee had appeared and challenged the locus standi of the learned advocate appearing for Raktima Chatterjee, who purported to represent the deity, to so appear. 42. Hence, as on April 07, 2025, there was evidently a confusion and a palpable contradiction as to who would represent the interest of the deity, i.e., the plaintiff no.1 in the suit. 43. Moreover, we do not find anything on record to show beyond doubt that April 07, 2025 was actually fixed for hearing of the temporary injunction application, although the same has been recorded in the order of even date by the Trial Court. 44. On the next date, i.e., May 22, 2025, the learned Trial Judge recorded that the record was fixed for hearing of the application under Order I Rule 10 of the Code. In the last paragraph of the said order, in fact, the learned Trial Judge reiterated that June 10, 2025 was fixed for hearing of the injunction application in conjunction of the application under Order I Rule 10 of the Code. 45. Thus, we find that the present petitioners in CAN 3 of 2025 and CAN 4 of 2025 had actually affirmed their written objections to the injunction application prior to the timeline stipulated by us in our order dated March 03, 2025 and had arguably served copies thereof on the plaintiffs. 45. Thus, we find that the present petitioners in CAN 3 of 2025 and CAN 4 of 2025 had actually affirmed their written objections to the injunction application prior to the timeline stipulated by us in our order dated March 03, 2025 and had arguably served copies thereof on the plaintiffs. The petitioner in CAN 5of 2025 had prepared his written objection and filed the same only ten days after the timeline for filing it expired. 46. We do not find much fault in the advice given by the learned advocates appearing for the present petitioners in the Trial Court to the effect that if the written objections were filed in respect of the suit on an “off-date”, i.e., a date not fixed for hearing of the suit, the written objections might be misplaced from the record and therefore the petitioners should wait for the next date of hearing of the injunction application to file the same. 47. Hence, we do not find any lack of bona fides on the part of the respondents / present applicants in filing the written objections beyond the period stipulated by us. 48. In the same breath, since we have already observed that the nature of the direction was in terrorem, we cannot castigate the petitioners per se for the delay in filing their written objections, since the written objections of two of the petitioners had already been affirmed within the timeline stipulated by us. 49. Although in case of the petitioner in the application bearing CAN 5 of 2025, the written objection was affirmed beyond the period stipulated by us, the objection was filed within only ten days thereafter. Hence, we do not find any lack of bona fides on the part of the petitioner in the said application as well. 50. All the present petitioners have furnished plausible explanations for the delay in filing their written objections to the injunction application in the Trial Court. 51. Accordingly, the applications, bearing CAN 3 of 2025, CAN 4 of 2025 as well as CAN 5 of 2025, are allowed on contest, thereby extending the time for filing the written objections up to the respective dates on which the written objections were filed in the Trial Court. The Trial Court shall now accept the said written objections and proceed on the premise of the same to decide the injunction application on merits. 52. The Trial Court shall now accept the said written objections and proceed on the premise of the same to decide the injunction application on merits. 52. However, we would like to add further that for an effective hearing of the injunction application, it has to be decided first as to whether Raktima Chatterjee and / or the other petitioners who have filed applications for addition of party in the suit on the one hand or Swapna Mukherjee on the other, have the authority at present to represent the plaintiff no.1/appellant no.1- deity in the suit. We so observe since, unless the right of representation is decided first as a preliminary issue, the same will directly affect the hearing of the injunction application as well as the suit, where the estate of the plaintiff no.1 / deity will also have to be properly represented. 53. The learned Trial Judge shall, accordingly, frame a preliminary issue as to who is/are at present entitled to represent the plaintiff no.1-deity first and decide the same, and only thereafter proceed to decide applications for injunction and addition of parties. 54. In any event, since the applications under Order I Rule 10 of the Code have been directed by the learned Trial Judge to be heard in conjunction with the injunction application on the next returnable date, we find it appropriate that the learned Trial Judge frames the issue as to who has the authority at present to represent the plaintiff no.1-deity in the suit first and immediately thereafter decide the applications under Order I Rule 10 of the Code as well as the injunction application. 55. Since pleadings are virtually complete in respect of both the injunction application as well as the addition of party applications, we expect that the Trial Judge shall complete such exercise as expeditiously as the business of the said Court permits, positively by August 14, 2025. 56. Insofar as the petitioner in CAN 5 of 2025 is concerned, he shall file his written objections to the applications for addition of party within one week from date. 57. 56. Insofar as the petitioner in CAN 5 of 2025 is concerned, he shall file his written objections to the applications for addition of party within one week from date. 57. We make it abundantly clear that we have not gone into the merits of the suit or the connected applications and it will be open for the learned Trial Judge to decide all questions in respect of the pending applications as well as the suit independently, without being influenced unduly in any manner by any of the observations made above. 58. The defendants / respondents shall hand over copies of all pleadings filed by them to the learned advocates-on-record appearing for Raktima Chatterjee as well as Somesh Mukhopadhyay, the petitioners in the applications under Order I Rule 10 of the Code, in the Trial Court as expeditiously as possible, positively within one week from date, without prejudice to the rights and contentions of the parties. 59. The applications bearing CAN 3 of 2025, CAN 4 of 2025 and CAN 5 of 2025 stand disposed of accordingly. 60. All parties as well as the learned Trial Judge shall act on the basis of server copies of this order, duly downloaded from the official website of this Court, for the purpose of compliance, without insisting upon prior production of certified copies. 61. Urgent photostat certified copies of this order, if applied for, be given to the parties upon compliance of all necessary formalities.