FMA/812/2026 of SHARAD GOENKA SINCE DECEASED REPD BY DIVYUSH GOENKA AND ANR Vs TARIT MITRA AND ANR on 28 July 2026

1. On consent of learned counsel for the parties, the appeal and the application are taken up together for hearing.

2. The ambit of the appeal is very short.

3. By the impugned order, the learned Trial Judge refused to extend an ad interim order of injunction granted earlier by the said court on the sole ground that the original plaintiff was dead and an application for substitution of his heirs, which was pending before the said court, had not yet been disposed of.

4. Learned senior counsel for the appellants and learned counsel for the respondents point out that apart from the injunction application being complete as regards pleadings, two other applications are also pending in the trial court, one being an application under Order XXXIX Rule 4 of the Code of Civil Procedure for vacating the ad interim order, filed at the behest of the defendants/respondents, and the other an application under Order VI Rule 17 of the Code for amendment of the plaint filed by the plaintiffs/appellants. We are apprised that the said applications are also complete as regards pleadings.

5. Upon a perusal of the impugned order and on hearing learned counsel, we find that the approach taken by the learned Trial Judge was hyper-technical and contrary to law.

6. As per the governing law as envisaged in Order XXII of the Code of Civil Procedure, the duty of the plaintiffs is discharged upon filing an application for substitution within the statutory limitation period in case of demise of a party, upon which the obligation shifts to the concerned court to decide such application.

7. In the present case, an application for substitution was filed duly within the limitation period but was kept pending by the trial court itself.

8. Surprisingly, the learned Trial Judge, despite being in seisin of the said application on the date of the impugned order, instead of just allowing the same and taking up the extension prayer, chose a hyper-technical path by refusing to extend the interim order on the ground that substitution was still pending.

9. In such view of the matter, the impugned order suffers from patent illegality.

10. Accordingly, FMA 812 of 2026 is allowed on contest, thereby setting aside the impugned order, bearing Order No. 87 dated June 12, 2026 passed by the learned Judge, Fourth Bench, City Civil Court at Calcutta in Title Suit No.433 of 2019, and allowing the substitution application filed by the plaintiffs in the trial court.

11. We also extend the interim order granted by the trial Court initially till disposal of the temporary injunction application.

12. The learned Trial Judge shall dispose of the injunction application, the vacating application under Order XXXIX Rule 4 of the Code as well as the amendment application under Order VI Rule 17 of the Code, all of which are pending, by taking up those together, preferably within six weeks from the date of communication of this order to the learned Trial Judge.

13. We make it clear that the merits of none of such applications have not been gone into by this court and it will be open to the learned Trial Judge to decide all of those on their own merits, in accordance with law and without being influenced by any of the above observations.

14. CAN 1 of 2026 is consequentially disposed of as well.

15. There will be no order as to costs.

16. Urgent photostat certified copies of this judgment, if applied for, be made available to the parties upon compliance with the requisite formalities.

(Sabyasachi Bhattacharyya, J.) I agree.

(Supratim Bhattacharya, J.) AD-27 AK