LAXMI NARAIN PATHAK Vs. ADDL DIST JUDGE GYANPUR

JUDGEMENT

(1.) In the district of Varanasi is a village Jhakao within tahsil Gyanpur. The petitioners Messrs Laxmi Narain Pathak, Nagendra Pathak and Mahendra Pathak from this village desired an electric connection from the U.P. State Electricity Board, Varanasi (hereinafter referred to as the Board). The Board was about to grant an electricity connection to the petitioners. The pole from which electricity connection was to be strung had been pitched. At this stage respondents Nos. 3 and 4 Messrs Shesh Dhar Pathak and Gyan Dutt Pathak applied for an injunction before the Munsif, Gyanpur by filing a suit No. 119 of 1984; Shesh Dhar Pathak and another v. Laxmi Narain and others seeking a permanent injunction along with an ad interim order that the petitioners, defendants before the trial court, be restrained from taking electricity wires straight from the pole to their house. An ad interim injunction was granted by the trial court and the electricity connection sought by the petitioners was, thus, stalled. Today four years have passed and the petitioners have yet to receive electricity, but cannot, because of the injunction granted in the suit. The injunction was granted by the trial court on 23 May 1984. The petitioners, as defendants, filed a Miscellaneous Appeal No. 41 of 1984 before the Additional District Judge, Gyanpur Varanasi. The injunction of the trial court was retained and the appeal of the petitioners was dismissed by the Additional District Judge, Gyanpur.

(2.) The respondents, aforesaid, sought the injunction on a claim that the track of land south of their shed and north of the house of Badri Prasad belonged to them or they were possessed of it. This is the track of land between the respondents' shed and Badri Prasad's house. It may belong to the said respondents. It may be a common passage or it may belong to Badri Prasad. Badri Prasad was not made a party to the suit. Upon the filing of the suit the first controversy raised by the petitioners was that this is a common passage being part of the abadi' and that the Gaon Samaj had not been made a party to the suit either. The record reveals that the Collector had also not been made a party.

(3.) Thus, while the suit is under consideration there will arise issues whether the suit itself is maintainable and whether certain parties were necessary parties and had not been arrayed as parties to the suit. On this aspect this Court does not desire to comment. Any comment may reflect upon the controversy in the suit on merits or on the maintainability of it. Thus while refraining from commenting upon the contention of the parties to the suit on merits, one thing is clear that this was not such a case that the respondents have made out a prima facie case to seek injunction to prevent the petitioners from obtaining electricity through the shortest distance when part of the land may be a common passage.