Legal representatives of a deceased defendant can be necessary parties in a suit for permanent injunction, as their presence is essential for the determination of the deceased's interest in the property.

ORDER :

In a suit for permanent injunction, a petition was filed to bring on record the legal representatives of the defendant No.3, who died prior to filing of the suit. Thus, this Civil Revision Petition is filed under Article 227 of the Constitution of India, against the order and decree dated 21.12.2017 in I.A.No.2 of 2017 in O.S.No.124 of 2016, on the file of the Senior Civil Judge, Parchur, by which allowed the petition under Order 22, Rule 4 of CPC r/w Section 151 of CPC, to add respondent Nos.5 to 7 therein as defendants 5 to 7, being legal representatives of deceased respondent/defendant No.3 and to amend the plaint.

2. The contention of the petitioners/plaintiffs in the petition is that the plaintiffs purchased the suit schedule property in a Court auction conducted in E.P.No.16/1999 in O.S.No.62/1989 and that the defendants were interfering with their peaceful possession and enjoyment and thus they filed suit unaware of the death of defendant No.3 and later, basing on the endorsement on the summons and notices of the Court, the plaintiffs came to know about the death of defendant No.3 and thus the present petition was filed to bring the legal representatives of deceased defendant No.3.

3. The petition was opposed by filing counters by respondent Nos.5 to 7, who are the proposed parties, stating that the plaintiffs have approached the Court with unclean hands and that since the suit is for permanent injunction, the petitioners should be aware of who is interfering with the possession and enjoyment and thus they filed a false case against these respondents with an intention to harass them and the petition is liable to be dismissed. It is further contended that the petitioners are not aware of the parties and thus surname was wrongly mentioned. It is also stated that they are not necessary parties, though they are the legal heirs of the deceased defendant/respondent No.3. It is further contended that the relief claimed in the present Revision Petition arises only when defendant No.3 dies pending the suit, but not when the death occurred before the institution of the suit.

4. The defendant Nos.1, 2 and 4 and the proposed defendants are represented by the same counsel, as can be seen from the docket proceedings dated 07.04.2017, in which it was recorded that the same counsel has filed vakalat for proposed parties as well.

5. After hearing both parties, the Trial Court allowed the petition and the Trial Court further opined that the proposed parties are the legal heirs of defendant No.3 and therefore they are necessary parties to the suit and to prevent multiplicity of proceedings, their presence is necessary for full and final determination of deceased. The Trial Court rejected the argument that if there is any interference by the proposed defendants, a separate suit can be laid by the plaintiffs. Having aggrieved by such order, the proposed defendant filed a revision petition. The 1st respondent is the plaintiff and respondent Nos.2 to 4 are defendant Nos.1, 2 and 4 respectively. Respondent Nos.2 to 4 are shown as necessary parties.

6. Learned counsel for the revision petitioners submitted that the defendant No.3 died prior to institution of the suit and when there is no cause of action against defendant No.3, the question of bringing the legal heirs of defendant No.3 doesn’t arise and more particularly, when there is no cause of action as there is no averment that the proposed parties are also interfering with possession of the suit schedule property. He further contended that in a suit for injunction, the decree is binding on the parties to the suit, that is, decree is in “personam” but not in rem and for all these reasons, they need not be impleaded.

7. Learned counsel for the 1st respondent submitted that permanent injunction can be granted not just when interference in the possession is claimed, but it can be granted against the defendant enjoining from the assertion of right as stated under Section 37(2) of the Specific