Full Judgment
Writ Petition No.13392/12.
30.8.2012 Shri Shailendra Verma, learned counsel for the petitioneRs.Shri Piyush Dharmadhikari, learned Govt.
Adv.for the State on advance copy.
Heard on the question of admission.
The petitioners-plaintiffs have filed this petition under Article 227 of the Constitution of India for issuing the writ in the nature of Certiorari to quash the order dated 6.7.2012 (Annexure-P-5) passed by Ist Civil Judge Class-II, Deosar District Singrauli in Civil Suit No.47- A/2004 whereby, their application filed under Order 6 Rule 17 of the CPC, to add the prayer of declaration to declare them the Bhoomiswami of the disputed land, has been dismissed.
After taking me through the papers placed on the record along with averments of the petition and the impugned order petitioners’ counsel has made his submissions at length for admission and allowing this petition by quashing the impugned order and to allow his application of Order 6 Rule 17 of the CPC.
In the couRs.of arguments I am apprised by the State counsel that in the lack of proper notice of Section 80 of the CPC., the petitioners could not be permitted to add the proposed prayer of declaration in the pending suit.
Keeping in view the aforesaid submission, after going through the record at this stage, in the available circumstances so also in view of the Scheme of Section 80 of CPC., as submitted by the State counsel, I have not found any error, irregularity, perversity or anything against the propriety of law in the order impugned.
Consequently this petition being devoid of any merit is hereby dismissed at the stage of motion hearing.
However, considering the oral prayer of petitioners’ counsel the petitioners are extended a liberty to file the fresh application after complying the provision of Section 80 of the CPC., in the present suit and the trial court is directed that on filing such an application, the same shall be considered by such Court in accordance with the procedure prescribed under the law.
Besides this, an additional liberty is also extended to the petitioners to file the appropriate application under Order 23 Rule 1 CPC for withdrawing the suit with a liberty to file the fresh suit with respect of the subject matter of the impugned suit by mentioning some additional facts and the relief.
Pursuant to it, the trial Court is also directed that on filing such application, the same be considered in accordance with law without influencing from any observations or the findings given by such Court in the order impugned or in this order by this Court.
Certified copy as per rules.
(U.C.Maheshwari) Judge Pb