MEHBOOB BHAI Vs. ABDUL KADIR

JUDGEMENT

(1.) HEARD counsel for the appellants and perused the order impugned dated 22. 4. 2002.

(2.) PLAINTIFF-appellants filed suit in representative capacity for declaration and mandatory injunction against the defendant- respondents. An application under Section 91, C. P. C. was also filed alongwith the suit seeking permission to file the suit in representative capacity. Vide order impugned dated 22. 4. 2002 the trial Court returned the plaint under Order 7 Rule 10, C. P. C. holding that in the suit filed in representative capacity seeking decree of declaration and injunction in mandatory form the Municipality, Abu Road is a necessary party as the relief sought there in is with regard to declaration of the patta dated 7. 6. 2000 issued by Municipal Board, Abu Road to be illegal and void ab initio.

(3.) THE counsel has placed before this Court a copy of the plaint. It is evident from the material on record that the patta in question is in respect of the land sold by municipality, which is alleged to be the land of public user. It cannot be disputed that the right of public user is a higher right to weigh with preponderance over right of a private individual and where complete and effective relief could be obtained in respect of subject-matter in dispute against a party, who is alleged to have caused/created public nuisance, it is not necessary to join any other party against whom no relief is sought by the plaintiffs. In the instant case, indisputably it is the plaintiffs to shoulder the burden of proof in the suit presented by them against the defendants. However, it will be open for the trial Court to decide this point after the defendants appear and if such plea is raised. In this view of the matter, in my considered opinion, the order of the trial Court returning the plaint at that stage cannot be sustained and is liable to be set aside.