NARENDRA SINGH Vs. HARI SINGH

JUDGEMENT

(1.) Heard learned counsel for the appellant on admission of second appeal and perused the records. Several plaintiffs have filed suit for permanent injunction restraining defendants from occupying or raising construction over disputed public property and in raising obstruction over its user by plaintiffs and other person of public.

(2.) Trial court had accepted written statement, framed issues, admitted evidences of the parties and then passed judgment dated 5.9.2014, by which original suit was dismissed. In this judgment, Additional Civil Judge (Junior Division), Jalaun at Orai had given finding that since plaintiffs had filed suit for public way, therefore, they had to complete the formalities mentioned in provisions of Rule 8 of Order 1 CPC. Trial court had held that since permission of court under Order 1 Rule 8 CPC had not been obtained and this provision has not been fulfilled, therefore, suit is not maintainable. Only on this basis, original suit was dismissed.

(3.) Against the judgment of trial court, plaintiffs of original suit had preferred Civil Appeal No. 100/2014, which was heard and allowed by 4th Additional District Judge, Jalaun at Orai by its judgment dated 25.1.2016. In this judgment, first appellate court had set aside the judgment dated 5.9.2014 of trial court and remanded the matter to trial court with direction that parties be afforded fresh opportunity of hearing on point of Order 1 Rule 8 CPC and Section 91 CPC, and thereafter fresh judgment be passed in the matter.