Aggarwal Vaish Panchayat vs Pardeep and others

Dr. (Mrs.) Sarojnei Saksena, J.

Petitioner has assailed the impugned order whereby the lower Curt has granted permission to the plaintiffrespondents to file a suit under Section 91, Civil Procedure Code.

Petitioner''s main grouse is that no opportunity was given to the defendantpetitioner to file reply to such application and without affording such opportunity and considering reply, the trial Court has granted permission to the plaintiffrespondents to file a suit for permanent injunction against the defendantpetitioners. He also pointed out that the defendant No. 1 petitioner had already filed a Caveat under Section 148A, Civil Procedure Code against one Pandit Shakti Sharma but still no opportunity was given to the defendant No. 1petitioner to file reply to the petition under Section 91, Civil Procedure Code. His last contention is that the impugned order is not a speaking one and thus, it is obvious that without applying judicial mind, the said discretionary order was passed in favour of the plaintiffrespondents.

The contentions are not tenable. When a suit is laid under Section 91, Civil Procedure Code, there is no scope to issue notice to the defendants to file reply to such a petition. If the Court considers that the petition filed under Section 91, Civil Procedure Code, be allowed it has jurisdiction to allow such petition. Hence, on this count, the order cannot be assailed.

From the impugned order, it is evident that the lower Court has not only considered the averments made in the petition but has also considered the plaint allegations and has held that in the totality of the circumstances and provisions of Section 91, Civil Procedure Code, the applicants are granted permission to institute the suit. Hence, it cannot be said that the order is not a speaking one or it shows that the judicial mind was not applied to the facts of the case.

So far as filing of the Caveat is concerned, defendant No. 1petitioner filed Caveat against one Pandit Shakti Sharma. Pandit Shakti Sharma is not a plaintiffrespondent even then as Shri J.B. Goel, Advocate appearing for the Caveator sought permission to file written statement and reply to the said application filed by the plaintiffrespondents, the prayer was granted. Hence, it cannot be said that notice of petition filed under Section 91, Civil Procedure Code, should have been given to the Caveator.

Thus, in my considered view, the trial Court has not fallen into an error in allowing the petition. Hence, revision being meritless, is hereby dismissed with costs, which is quantified at Rs. 500/.