Avtar Singh and another vs Gram Panchayat Dhillawan and others

Rajesh Bindal, J.—Challenge in the present petition is to the order dated 4.3.2011 passed by the learned court below whereby prayer for interim stay was rejected.

The case in hand has peculiar facts. The petitioner filed a suit under Order 1 Rule 8 CPC restraining the Gram Panchayat from changing the user or raising the construction on the land mentioned in the suit, which was being used as cremation ground by the residents of the village. Vide order dated January 07, 2010, the learned trial court granted ad interim injunction in favour of the petitioners/plaintiffs. However, subsequent thereto, an application was filed by some of the plaintiffs on July 20, 2010 seeking withdrawal of the suit. The suit was permitted to be withdrawn and the injunction granted vide order dated 07.01.2010 was vacated. On that very day two of the plaintiffs, who had not filed application for withdrawal of the suit, filed application before the learned court below stating that they do not wish to withdraw the suit. On their application, the court directed that suit shall not be treated as dismissed as withdrawn and further date for hearing was fixed. As the interim order granted on 07.01.2010 had not been restored, the petitioners filed application therefor, which was rejected by the learned court below vide impugned order. It is in these circumstances that the petitioners are before this Court.

At the very outset, learned counsel for respondent No. 1 submitted that after the vacation of the interim stay granted by the learned trial court, construction had been raised on the land in question, which had been donated by the Gram Panchayat to the Government for construction of a college. It was for the reason that the portion of the land used as cremation ground was located on main road. Alternative site has been earmarked for cremation ground, which is even bigger than the site in question.

Considering the aforesaid facts, interim injunction as is sought to be prayed by the learned counsel for the petitioners cannot be granted at this stage. Accordingly, relief to that extent is declined.

It may be noticed that at the time of issuance of notice of motion, this Court had passed the following order :-

Contends that petitioners-plaintiffs No. 2 and 4 alongwith five other persons had filed the suit under Order 1 Rule 8 of the CPC in representative capacity on behalf of all the residents of Village Dhillawan. It is further argued that five of the plaintiffs made statements withdrawing the suit and, however, no such statement was given by present petitioners-plaintiffs and despite that learned trial Court first passed order dated 20.7.2010 dismissing the suit as withdrawn and on the same day, another order was passed that two of the plaintiffs, i.e. present petitioners had not withdrawn the suit and that the same could not be dismissed as withdrawn and hence, order was reviewed by learned trial Court and the case was ordered to be fixed for further proceedings for 2.11.2010, the date already fixed. It is further contended that, however, order granting ad interim injunction vide order dated 7.1.2010, was illegally withdrawn by learned trial Court by first order passed on 20.7.2010 and the injunction order was not restored by passing second order and hence aggrieved against the said order, application was filed by present petitioners-plaintiffs before the same Court seeking restoration of the ad interim injunction order and, however, instead of deciding the said application of present petitioners-plaintiffs, learned trial Court has again ordered for dismissal of suit as withdrawn, without any statement of present petitioners to this effect.

A perusal of the order dated 20.07.2010 passed by the learned court below also shows that when the application was filed by the present petitioners bringing to the notice of the learned court below that they had not prayed for withdrawal of the suit, the learned court ordered that the same be not treated to be dismissed as withdrawn, however, subsequent thereto when application filed by the petitioners for restoration of the interim order was considered, file was directed to be consigned to the record room.

On 8.4.2011, this Court had directed the learned court below to proceed further with the case in terms of the second order passed on July 20, 2010 as all the plaintiffs had not filed application for withdrawal of the suit. Considering the aforesaid fact, the order passed by this Court on 8.4.2011 directing that the proceedings in the suit shall continue, is made absolute.

The petition is disposed of accordingly.