DURGA DASS Vs. BANARAS DEV (LT COL )

JUDGEMENT

(1.) THIS is a defendants application to revise an order dated February 9, 1971, of the Sub Judge (Chief Judicial Magistrate) Jammu whereby he set aside in appeal the order dated June 26, 1970 of the Sub Registrar, Munsiff, Jammu, dismissing the plaintiff -respondents suit as not maintainable.

(2.) THE respondent, it appears, brought a suit for permanent injunction restraining the petitioner from constructing his house in such a manner as to encroach on the 20 feet wide road lying between the plots of the parties. Although in para 3 of his petition of plaint the respondent averred that the road was being used by both the parties and other members of the public, in para 4 he specifically averred that the construction contemplated to be put up by the petitioner would reduce the width of the road, interfere with his right of passage and cause great harm and inconvenience to him. In the written statement filed by him in opposition to the plaint the petitioner contended that the suit was not maintainable without resort to the provisions of 0. 1, R. 8, of the Civil Procedure Code as the road in respect of which the encroachment was alleged was on the respondents own showing a public road. A preliminary issue relating to the objection was raised by the trial court and on a consideration of the matter it came to the conclusion that as the respondent had the same interest in the road as the public at large the suit was representative in character and as such is was incumbent on him to have obtained the permission of the court as required by O. 1 R. 8 of the Civil Procedure Code. The trial Court accordingly dismissed the suit as not maintainable. On appeal the learned Sub Judge (Chief Judicial Magistrate) Jammu, set aside the order holding that the suit having been brought in his personal capacity by the respondent was not covered by the provisions of Order 1 rule 8 of the Civil Procedure Code. Accordingly he decided the preliminary issue in favour of the respondent and remanded the suit to the trial court for determination of the rest of issues. Aggrieved by this order the petitioner has come up in revision to this court.

(3.) THE short question that I am called to decide in this revision is as to whether the present suit is not maintainable in view of the provisions of Order 1. Rule 8, Civil Procedure Code. It is now well settled that Order 1, Rule 8, C. P. C merely an enabling provision formulated for the sake of convenience and it does not debar a member of community from instituting a suit on his own right in respect of a wrong done to him though the act complained by him may also be injurious to the whole community.