Prabhudas S/O Bhajandas ... vs Hanumandas Swami S/O Gaadiramdas
2021 Latest Caselaw 1026 Raj/2

       HIGH COURT OF JUDICATURE FOR RAJASTHAN
                   BENCH AT JAIPUR

                S.B. Civil Writ Petition No. 5331/2020

1.     Prabhudas S/o Bhajandas (Deceased),
1/1.   Satyanarayan Swami S/o Prabhudas Swami, Aged About
       32 Years,
2.     Prakash S/o Bhajandas (Deceased),
3.     Ramprasad S/o Ramdayal, Aged About 40 Years
4.     Puran Swami S/o Ramdayal, Aged About 40 Years,
5.     Pappu S/o Ramdayal Das, Aged About 30 Years,
6.     Ramdayal Das S/o Sukhpal Das, Aged About 70 Years,
7.     Rambabu Das S/o Ramdayal Das, Aged About 36 Years,
       All b/c Dadupanthi, Resident Of Bherun Darwaja Jamat,
       Sawai Madhopur, Tehsil And District Sawai Madhopur
                                                                ----Petitioners
                                   Versus
1.     Hanumandas Swami S/o Gaadiramdas, Aged About 50
       Years, B/c Swami, Resident Of Bherun Darwaja, Dadu
       Through Sawai Madhopur
2.     Laxmandas S/o Gyandas Swami, Aged About 50 Years,
       B/c Swami, Resident Of Jamat Lalsot, District Dausa
3.     Lacchma W/o Hanumandas (Deceased),
4.     Shakuntala W/o Satyanarayan, Aged About 23 Years,
5.     Atmaram @ Pappu S/o Hanumandas, Aged About 30
       Years,
6.     Tulsiram S/o Hanumandas, Aged About 28 Years,
7.     Raju S/o Hanumandas, Aged About 19 Years,
8.     Sunita W/o Atmaram, Aged About 26 Years,
9.     Madhu W/o Tulsiram, Aged About 23 Years,
       All B/c Swami Dadupanthi, Resident Of Dadu Dwara,
       Bherun Darwaja Ke Pas, City Sawai Madhopur
10.    Shri Hanumandas Swami Chela Shri Ramprasad Das
       Swami, Makan No. 1367, Niwai, Mahant Ka Rasta,
       Ramganj Bajar, Jaipur (Deceased)
11.    Ramesh Chand Swami S/o Shri Kanhaiyadas Swami, B/c
       Dadupanthi Swami, Resident Of Alanpur, Tehsil And
       District Sawai Mahdopur


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                                          (2 of 4)                  [CW-5331/2020]


                                                                ----Respondents

For Petitioner(s) : Mr. Bipin Gupta, Advocate For Respondent(s) : Mr. Ashindra Gauta, Advocate

HON'BLE MR. JUSTICE PRAKASH GUPTA Order

01/02/2021

This writ petition has been filed against the order dated

5.2.2020 passed by the Trial Court, whereby the application filed

by the petitioners-plaintiffs (for short, 'the plaintiffs') under Order

1 Rule 8 CPC has been dismissed.

Facts of the case are that the plaintiffs filed a suit for

permanent injunction and possession against the respondents-

defendants (for short, 'the defendants'). The defendants put in

appearance and filed the written statement. During the pendancy

of the suit, the plaintiffs filed an application under Order 1 Rule 8

CPC, which has been disallowed by the Trial Court vide its order

dated 5.2.2020. Hence, this writ petition.

Learned counsel for the plaintiffs submits that it was

specifically mentioned in the suit that the defendants no. 1 to 8

forcible entered into the public property Dadupanthi community

and encroached over the Dadu Dwara with a view to grab the

same. In the relief also, the plaintiffs described the suit property

as a community Dadupanthy's property and sought possession

thereof to Dadu Panthi community. He further submits that since

there are various persons of the Dadupanthy community, as such

suit was filed by the plaintiffs in representative capacity on behalf

of a community and not in their personal capacity. He further

submits that Order 1 Rule 8 CPC does not prescribe as to at which

stage the application can be filed. Thus, application under Order 1

(3 of 4) [CW-5331/2020]

Rule 8 CPC could have been filed at any stage of the suit, whereas

the learned Trial Court while dismissing the application has given

a perverse finding that the matter is at the final stage. He has

relied upon the judgment of the Hon'ble Apex Court in the case of

Krishnan Vasudevan and Others Versus Shareef and Others

reported in (2005) 12 SCC 180 and submitted that in this view of

the matter, the impugned order is liable to be quashed and set-

aside and the matter is required to be remanded to the trial court

with a direction to decide the application under Order 1 Rule 8

CPC afresh.

Learned counsel for the defendants has no objection if

the impugned order dated 5.2.2020 qua application under Order 1

Rule 8 CPC is quashed and set-aside and the Trial Court is directed

to decide the application under Order 1 Rule 8 CPC afresh.

Heard. Considered.

In the case of Krishnan Vasudevan and Others (supra),

Hon'ble Apex Court has observed as under:

"Order 1 Rule 8 CPC does not prescribe any stage at which the application can be filed. In our opinion, the trial court ought to have heard and decided the application on its own merits without regard to the stage at which it was filed. The error committed by the trial court should have been corrected by the High Court."

Taking into consideration the facts and circumstances of

the case, and more particularly in view of the consent of learned

counsel for the parties as also the judgment of the Hon'ble Apex

Court in the case of Krishnan Vasudevan and Others (supra), the

impugned order dated 5.2.2020 qua application under Order 1

Rule 8 CPC is quashed and set-aside. The application under Order

(4 of 4) [CW-5331/2020]

1 Rule 8 CPC shall be heard and decided on its own merits by the

trial court.

Both the parties are directed to appear before the

Trial Court in this regard on 1.3.2021.

The writ petitions stand disposed of accordingly.

(PRAKASH GUPTA), J.

DILIP KHANDELWAL /11

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