Chittatosh Mookerjee, J. - (1.) The plaintiffs are the appellants in this appeal. They brought a suit in the City Civil Court, Calcutta against the Corporation of Calcutta, the Commissioner of the Corporation of Calcutta and two other officers of the Corporation of Calcutta, Inter alia, for a declaration that the notice under section 414(1) of the Calcutta Municipal Act and the order of the defendant No. 4 pursuant thereto were bad in law, invalid, ultra vires and they had no authority to demolish the shed at the back of the Premises No. 5, Haralal Das Lane. the plaintiffs also prayed for permanent injunction to restrain the defendants from demolishing the shed in suit.
(2.) The defendants including the Commissioner, Corporation of Calcutta by filing the written statement contested the said suit. In their said written statements, the defendants did not make any averments that the suit was liable to be dismissed in limini on the ground that the Commissioner, Corporation of Calcutta had not been impleaded by the name of the then incumbent of the said office. But the learned Judge, Eighth Bench, City Civil Court, Calcutta has however dismissed the suit brought by the plaintiff appellants, inter alia, on the ground that the plaintiffs not having impleaded the Commissioner by name the suit must fail. At the same time the learned Judge of the Court below found in favour of the plaintiffs that the impugned C.I. shed was constructed more than 12 (twelve) years before April 6, 1959 and, therefore, no action could be taken under section 414 of the Calcutta Municipal Act, 1951.
(3.) The learned Judge of the trial court founded his judgement primarily on the decision in P.B. Shah & Co.& others v. Chief Executive Officer, Corporation of Calcutta & others 65 C.W.N. 1128. But the said decision of Bachawat and Chatterjee, JJ. in P.B Shah's case (supra), ought to be read in the light of the later decision of P.N. Mookerjee and A.C. Sen, JJ. in M/s Metro General Traders v. The Commissioner, Corporation of Calcutta, AIR 1965 Calcutta 442.;