The central legal point established in the judgment is the necessity of parties to the suit and the application of Order 1 Rule 10 (2) of the CPC in setting aside the order expunging the names of the defendants.

Bibek Chaudhuri, J.

An order being no. 38 dated 27th April, 2016 passed by the Ld. Judge, 10th Bench, City Civil Court, Calcutta in Title Suit No. 2761 of 2010 is under challenge in the instant revision under Article 227 of the Constitution of India at the instance of the plaintiff/petitioner.

2. Salient facts necessary for the disposal of the instant revision are summarized below :-

3. The petitioner as plaintiff filed Title Suit No. 2761 of 2010 for declaration and permanent injunction against the defendants/opposite parties. A decree for declaration was prayed for by the petitioner in the above mentioned suit to the effect that the contract executed between the plaintiff/petitioner and the defendants/opposite parties no. 1 to 6 is a concluding contract and purported transfer of the premises in suit in favour of defendant no. 7 and 8 is in violation of the aforesaid contract between the petitioner and opposite parties 1 to 6. In the said suit, on the prayer of the petitioner an ad interim order of injunction was passed on 4th August, 2010 directing the parties to maintain status quo in respect of possession, nature and character of the suit premises. Subsequently, the said order of ad interim injunction was made absolute by the Ld. Trial Judge till the disposal of the suit. In pursuance to summons, the opposite parties no. 3, 5, 7 and 8 entered appearance in the said suit and duly filed their written statement. Summons sent to opposite parties no. 2, 4, 6 and 9 were returned with postal remark 'left'. Ultimately by an order dated 20th December, 2013, the Ld. Trial Judge expunged the names of the defendants/opposite parties no. 2, 4, 6 and 9 and fixed the suit for peremptory hearing. This prompted the petitioner to file an application under Section 151 read with order 1 rule 10 (2) the Code of Civil Procedure (hereinafter described as CPC) immediately on the date of passing the order expunging the names of the opposite parties no. 2, 4, 6 and 9 from the cause title. The said application was rejected by the Ld. Trial Judge by an order dated 27th April, 2016 which is impugned in the instant revision.

4. Relevant portions of the impugned order dated 27th April, 2016 is set out here-in-under:-

"On perusal of entire record I find that this Court vide order no. 29 dt. 20.12.13 expunged the name of defendant nos. 2, 4, 6 and 9 and conduct of this plaintiff was not good. I also find from orders of previous date i.e. order dt. 15.07.13, 29.08.13 that case was fixed for taking step by plaintiff upon these defendants but they did not take step against these defendant and ultimately my predecessor had no option but to expunge the name of defendant nos. 2, 4, 6 and 9 from this Case. I also find from the record that after passing the said order on 20.12.13, eight dates were fixed for framing of issues but plaintiff did not bother to file petition which he filed today, before my predecessor to set aside the order dt. 20.12.13 and he simply submitted before this Court that it was not reflected in cause list. Except oral submission of Ld. Lawyer of plaintiff nothing has been given before this Court to show that it was not reflected on cause list that on those eight dates the case was not fixed for framing on issues, moreover, it is totally unbelievable that all these eight dates were not reflected on the cause list. It clearly shows that plaintiff is with the intention to drag this suit and not to proceed with the suit and as well as this Court framed issue on the last occasion, he came to know that issue has been framed and now order dt. 20.12.13 should be set aside. It also shows that how interested this plaintiff is relating to this Case. When I perused order 17 of C.P.C I find that during hearing either side will get three chances i.e. three adjournment for completion of their proceeding before the Court but entire conduct from the record it is very much clear that plaintiff filed this Suit, he is not interested to proceed this Case.