Manish Mishra vs Ashutosh Mishra And 9 Others
2023 Latest Caselaw 25845 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


Neutral Citation No. - 2023:AHC:183020
 
Court No. - 1
 

 
Case :- MATTERS UNDER ARTICLE 227 No. - 7291 of 2023
 

 
Petitioner :- Manish Mishra
 
Respondent :- Ashutosh Mishra And 9 Others
 
Counsel for Petitioner :- Ram Milan Mishra
 

 
Hon'ble Jayant Banerji,J.

1. Heard learned counsel for the petitioner.

2. This petition has been filed seeking the following relief:

"1. Issue an order or direction in suitable nature setting aside the order dated 27.04.2023 passed by District Judge, Farrukhabad in Civil Revision No. 51/2022 (Manish Mishra Vs Ashutosh and others) as well as the order dated 02.11.2022 passed by Civil Judge (S.D.). Farrukhabad in O.S. No.410/2020 (Ashutosh and others Vs Mamta Chaturvedi and others) (ANNEXURE No. 7 and 6 to the petition).

2. Issue an order or direction in suitable nature allowing the application of petitioner filed under order 7 rule 11 of C.P.C. i.e. Paper No.35 C/2."

3. It appears from the record that the plaintiff-respondents instituted a suit against the defendant-petitioner and the defendant-respondents, seeking a relief of permanent injunction restraining from interfering in their possession. In the aforesaid suit, an application under Order VII, Rule 11 was filed on behalf of the defendants for rejection of the plaint on the grounds that, firstly, the Co-operative Society, which is a necessary party, has not been impleaded, and, secondly, the suit is barred under Section 70 of the U.P. Co-operative Societies Act, 19651. The trial court by the impugned order dated 2.11.2022, rejected the application on the grounds that earlier an application No. 18C2 was filed by the defendants under Order I, Rule 8 for impleading the Co-operative Society as a necessary party, which was rejected and, therefore, the present application cannot be considered.

4. It was further observed that the Co-operative Housing Society has not been made a party and, therefore, the suit would not be barred under the Act, 1965. The petitioners challenged the aforesaid order in a Civil Revision No. 51 of 2022 in the court of the District Judge, Farrukhabad, which revision was dismissed, holding that the dispute relates to usage by the defendants of a park made in the housing society and, therefore, it would not be barred under Section 70 of the Act, 1965.

5. The contention of the learned counsel for the petitioners is that the courts have misdirected themselves by not correctly appreciating the import and effect of the provision of Section 70 of the Act, 1965 and the revisional court has misinterpreted a judgment of this Court in the case of Ram Shanker Versus State of U.P., 2007 (66)ALR 421.

6. The matter requires consideration.

7. Issue notice.

8. Steps shall be taken within a week, failing which matter shall be listed forthwith thereafter under Chapter XII Rule 4 of the Allahabad High Court Rules. If steps are taken within the specified period, list the matter on the date mentioned in the notice.

9. Till the next date of listing, further proceedings in Original Suit No. 410 of 2020 shall remain stayed.

Order Date :- 21.9.2023

K.K.Tiwari

(Jayant Banerji, J.)