AWDHESH PRASAD SHARMA Vs. REETA MISHRA

JUDGEMENT

(1.) As private respondents have not noticed before trial Court and they have not caused their appearance, I find it appropriate to finalize the writ petition without issuing notice to respondents.

(2.) Petitioners have preferred this writ petition under Article 227 of the Constitution of India challenging the order dtd. 23/12/2021 passed by Civil Judge, Class-II, Saja, District Bemetara, Chhattisgarh whereby learned trial Court has rejected the application filed by the petitioners under Sec. 80(2) of the Code of Civil Procedure, 1908 (for short 'CPC') and return the plaint.

(3.) Ms. Sharmila Singhai, learned senior counsel for the petitioners would submit that petitioners have filed civil suit before trial Court for declaration of title, injunction and removal of encroachment along with an application under Order 39 Rules 1 and 2 read with Ss. 94 and 151 of CPC, application under Order 39 Rule 3 of CPC and an application under Sec. 80(2) of CPC on the ground that respondents No. 1 to 6/defendants, elected Sarpanch, Secretary and residents of village Morai Khurd have constructed one Jaystambh in front of land bearing Khasra Nos. 1099 and 652 owned by petitioners. Subsequently, respondents No. 1 to 6 further started construction of Sanskritik Bhawan (Cultural Building) encroaching upon the land of petitioners. As Panchayat resolved to construct Cultural Building in front of land of petitioners, notice under Sec. 80(2) of CPC read with Sec. 108 of Chhattisgarh Panchayat Raj Adhiniyam has been sent to State Government/respondent No. 7, respondent No. 3 as well as respondents No. 1 and 2 on 7/12/2021. Thereafter, when respondents No. 1, 2 and 4 to 6 started construction work by digging land, looking to the urgency, petitioners have filed civil suit before concerned Court on 22/12/2021 with application under Sec. 80(2) and under Order 39(3) of CPC. She submits that learned trial Court erroneously rejected application under Sec. 80(2) of CPC returned back the plaint observing that there is no urgency. She submits that in plaint, it has been categorically mentioned that on 18/12/2021, respondents started digging land of petitioners for raising permanent construction. In application under Order 39 Rule 3 of CPC and in application under Sec. 80(2) of CPC also, they have pleaded that respondents have already started construction by encroaching upon land of petitioners. While considering application under Sec. 80(2) of CPC, learned Court below without considering pleadings made in plaint as well as application under Order 39 of CPC in entirety, erroneously came to conclusion that there is no urgency and rejected the same. When there is urgency of seeking any relief against Government Officials or any authority, under the provision of Sec. 80(2) of CPC, suit can be instituted with the leave of Court, without serving any notice as required by sub-sec. (1) of Sec. 80 of CPC.