USHA CHHAPRIYA Vs. MAHESH PRASAD @ MAHESH KUMAR

JUDGEMENT

(1.) HEARD on the question of admission. By this petition under Article 227 of the Constitution of India, the petitioners have called in question the order dated 1.8.2013, passed in Civil Suit No. 127 -A/2010, by I Civil Judge Class -II, Khurai. The petitioners, the defendants in the suit filed an application under Order 14 Rule 5 read with Section 151 of the Code of Civil Procedure (hereinafter referred to as the CPC for brevity) for framing of certain additional issues and trying the same as preliminary issues. Such an application was opposed by the respondent/plaintiff and by the impugned order, the trial Court has rejected the application of petitioners, therefore, this writ petition is filed.

(2.) THE respondent/plaintiff filed a suit for permanent injunction claiming that the respondent/plaintiff is the owner in possession of land bearing Survey No. 609/1, Area 1.802 hectare. A sale deed was executed by the respondent/plaintiff in favour for the petitioner No. 1 transferring 0.14 hectare land. It is alleged that stating that the land of the petitioners would be measured leaving 70 feet area from the centre of the road, they made an encroachment over the part of the land of the respondent/plaintiff and, therefore, suit for injunction was required to be filed. Such a suit was contested on various grounds by the petitioners stating that the land was purchased for the purposes of establishing a retail outlet allotted by Hindustan Petroleum Corporation Limited (hereinafter referred to as the Corporation for short). The land purchased by the petitioner has already been diverted. In case any injunction is required to be obtained, the Corporation was a necessary party. The value of the land in dispute is more than 20 lacs and the suit is to be valued accordingly. It was contended that such a suit was not maintainable only for grant of permanent injunction.

(3.) IT is, vehemently, contended by learned counsel for the petitioners that if the pleadings are raised in such manner by the petitioners in the written statement, it was necessary on the part of the trial Court to frame the issues. The defence if proved, will oust the jurisdiction of the Court and the suit itself would be liable to be dismissed for non -joinder of necessary parties. Thus, it is contended that the application of the petitioners has wrongly been rejected and, therefore, the order impugned is liable to be set aside.