MAHULBHAI BIPINBHAI TAMBOLI Vs. AKSHAYBHAI RAMANBHAI THAKKAR

JUDGEMENT

(1.) This second appeal under section 100 of the Civil Procedure Code, 1908 ( for short "the CPC") is at the instance of the original plaintiffs and is directed against the judgment and order passed by the 7th Addl. District Judge, Bhavnagar dated 05.03.2016 in the Regular Civil Appeal No.6 of 2016, by which, the 7th Addl. District Judge, Bhavnagar, dismissed the appeal preferred by the plaintiffs, thereby affirming the judgment and decree passed by the 2nd Addl. Civil Judge, Bhavnagar dated 04.01.2016 below Exh.11 in the Regular Civil Suit No.704 of 2015.

(2.) For the sake of convenience, the appellants herein shall be referred to as the original plaintiffs and the respondents herein shall be referred to as the original defendants.

(3.) It appears from the materials on record that the plaintiffs instituted the Regular Civil Suit No.704 of 2015 in the court of the Principal Civil Judge, Bhavnagar for a declaration and injunction. The defendant No.1 is a private party, whereas the defendant No.2 is the Bhavnagar Municipal Corporation through its Commissioner. The suit came to be instituted by the plaintiffs stating that the subject matter touches the public interest and the suit has the ingredients of Order 1 Rule 8 of the CPC. The defendant No.1 preferred an application, Exh.11, under the provisions of Order 7 Rule 11 (d) of the CPC and prayed for rejection of the plaint on the ground that as the suit had been instituted under the provisions of Order 1 Rule 8, the permission of the Court before filing such suit is mandatory, and as no such permission had been obtained, the plaint was liable to be rejected. The 2nd Addl. Civil Judge, Bhavnagar adjudicated the application, Exh.11, and allowed the same. The Civil Judge rejected the plaint on the ground that the suit was barred by law, i.e., the provisions of Order 1 Rule 8 of the CPC.