Full Judgment
1 Writ Petition No.8199/2012.
30.8.2012 Shri R.
S Chaturvedi, learned counsel for the petitioneRs.Smt.
Sharda Dubey, learned P.L.for the respondents on advance copy.
Heard on the question of admission at length.
The petitioners have filed this petition under Article 227 of Constitution of India for issuing appropriate writ in the nature of certiorari for quashment of the order dated 9.4.2012 (Ann.
P.14) passed by 4th Civil Judge, Class-II, Rewa in Civil Suit No.98-A/11 whereby allowing the application of the respondent No.1 and 2 filed under Order 1 Rule 8 of CPC they were permitted to prosecute the aforesaid suit as representative suit.
Keeping in view the arguments advanced by the petitioner's counsel, I have carefully gone through the petition as well as the papers placed on record.
The respondent No.1 and 2 herein filed the impugned suit (Ann.
P.11) against the petitioners and some other persons including the State of Madhya Pradesh and Municipal Corporation Rewa for declaration and perpetual injunction with respect of land bearing KhaSr.No.4905 and 4906 area 0.041¼ acre situated in the township of Rewa described in the plaint.
Interalia in such suit the prayer to declare the aforesaid disputed land is of the use of general public for public cause and the same could not be alloted to any of the private person by any arrangement or the allotment with a further prayer of perpetual injunction restraining the petitioners as well as respondent No.3 and 4 from taking possession of such land or to make any construction or 2 placing the door towards the side of such land by themselves or through their servant or agent is also made.
Such suit has been filed by the respondent No.1 and 2 on behalf of the Public of Rewa at large along with an application under Order 1 Rule 8 of CPC permitting them to prosecute such suit as representative suit.
On consideration by allowing the aforesaid application, they have been permitted to prosecute such suit as representative suit vide order dated 9.4.2012 (Ann.14).In the couRs.of the argument on admission the petitioneRs.counsel argued that before filing the present suit, the respondent No.2 and father of respondent No.1 have also filed a suit against the petitioners and respondent No.3 and 4 with respect of the same land claiming that such property is belonging to them but the same was dismissed in default and for want of prosecution and thereafter malafidely the present suit has been filed with the aforesaid application by stating the dispute land is of a public used and on this ground the prayer for setting aside the impugned order (Ann.
P.14) is made.
It is undisputed fact, as submitted by the petitioneRs.counsel that earlier suit was dismissed in default and not adjudicated on merits.
Such suit was also not filed by the respondent No.1, as such earlier suit was filed by the father of the respondent No.1 and respondent No.2.
In any case such suit was not adjudicated on merits and dismissed in default then nothing comes in the way of the present plaintiffs respondent No.1 and 2 to file and prosecute the fresh suit on the available different cause of action relating to the public at large.
3 After perusing the averments of the plaint prima-facie, it appears that such suit has been filed for the welfare of the public of Rewa at large and considering such pleadings if the trial Court has allowed the impugned application of the respondent No.1 and 2 filed under Order 1 Rule 8 of CPC permitting them to prosecute the suit as representative suit then such Court has not committed any error in passing such order.
Apart the above, the impugned order has been passed under discretionary power vested in such Court under the provision of Order 1 Rule 8 of CPC and whenever, taking into consideration the factual matrix of the matter the discretionary order is passed by the subordinate Court in a judicial manner and not in a arbitrary manner then such order could not be interfered either under the revisional jurisdiction or under the supervisory jurisdiction of this Court under Article 227 of he Constitution of India.
So in such premises also the impugned order does not require any interference in this petition.
In view of the aforesaid discussion, I have not found any circumstance in the order impugned which requires any interference under Article 227 of the Constitution of India.
Consequently, the petition being devoid of any merits is hereby dismissed at the stage of motion hearing.
(U.C.Maheshwari) Judge k