All Villagers of Village Melinkheda vs Hari Kishan and Others

Gopal Krishan Vyas, J.—Heard learned counsel for the parties. Instant writ petition has been filed by the petitioner plaintiffs with the prayer to quash the order dt. 14.01.2010 (Annex. 10) passed by District Judge, Bhilwara whereby, in appeal filed by Municipal Council, Gangapura through its Executive Officer was dismissed and order dt. 18.03.08 passed by Civil Judge (S.D.), Gangapura was upheld.

As per facts of the case, the plaintiff petitioners preferred a suit for declaration and permanent and mandatory injunction in the representative capacity with the prayer that the land situated in Araji No. 1491, 1492, 1493 are in the name of Municipal Council, Gangapura, Bhilwara and Villagers of Village Melin Kheda are having right to use the old way through this Araji numbers. It is also claimed that there was one Patwari Pooja Centre constructed for last 70 years and same is used for religious purpose like worship etc but non-petitioners No. 1 to 5 forcibly taken possession over the aforesaid Araji. Alongwith the suit, an application for temporary injunction was filed but the same was dismissed by the trial Court vide order dt. 18.03.2008. Against the said order, no appeal was preferred by the plaintiff petitioners and in the suit, another application for temporary injunction under Order 39 R 1 & 2 read with Section 151 CPC was filed by the defendant Udai Ram and in the said temporary injunction application, trial Court granted interim injunction in favour of defendant vide order dt. 18.03.2008 in Civil Misc. Application No. 45/07.

The Municipal Council, Gangapura preferred an appeal against the order dt. 18.03.2008 passed in Civil Misc. Application No. 45/07 filed by co-defendant Udai Ram in whose favour temporary injunction was granted. The appellate Court dismissed the appeal and upheld the order passed by trial Court. The order passed upon appeal by Municipal Council, Gangapura is under challenge in this writ petition.

At the threshold, learned counsel for the respondent submits that the petitioner plaintiffs have no locus standi to challenge the order dt. 14.01.2010 because no appeal has been filed by the plaintiff petitioner against the order dt. 18.03.2008 passed in Civil Misc. Application No. 45/07 so also against the refusal of temporary injunction application filed by plaintiff petitioners, therefore, this writ petition deserves to be dismissed.

Learned counsel for the respondents vehemently argued that where no appeal has been filed by the plaintiff petitioners against both the orders rejecting the temporary injunction filed by petitioner plaintiff and the order of allowing application filed by defendants on 18.03.2008, then now petitioners cannot challenge the order passed by the appellate Court. After hearing learned counsel for the parties, in my opinion, once the petitioner plaintiffs were satisfied with the order passed by the trial Court for deciding their temporary injunction application and by the defendant Udai Ram, then petitioner has no locus standi to challenge the order passed by the appellate Court in appeal filed by Municipal Council dt. 14.01.2010, therefore, this writ petition is hereby dismissed solely on the ground that plaintiff petitioners are having no locus standi to challenge the order passed by appellate Court.