Patna High Court - Orders
Vijay Lal & Ors vs Baptist Church Trust Association & Ors on 9 August, 2017
Author: Prakash Chandra Jaiswal
Bench: Prakash Chandra Jaiswal
IN THE HIGH COURT OF JUDICATURE AT PATNA
Miscellaneous Appeal No.176 of 2016
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Vijay Lal & Ors
.... .... Appellant/s
Versus
Baptist Church Trust Association & Ors
.... .... Respondent/s
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Appearance :
For the Appellant/s : Mr. Dhruv Narayan
Mr. Abhishek
Mr. Prabhat Kumar Deepak
Mr. Niraj Kumar
For the Respondent no. 1 : Mr. Rajendra Narayan
For the Respondent no. 2 : Mr. Rakesh Kumar
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CORAM: HONOURABLE MR. JUSTICE PRAKASH CHANDRA
JAISWAL
ORAL ORDER
5 09-08-20171. Learned counsel for the respondent nos. 1 and 2 at the very outset of the argument challenging the maintainability of the appeal submitted that in the lower court plaintiff no. 6 namely, Mrs. Dheera Rani Mandal had filed injunction petition which was rejected by the learned lower court vide order dated 11.01.2016, but instead assailing the aforesaid order by the said plaintiff, other plaintiffs who were non-applicant in the said order, had filed this appeal assailing the impugned order which is not maintainable as the aforesaid appellants have no locus standi to file this appeal.
2. On the other hand, it has been submitted by the learned counsel for the appellants that though plaintiff no. 6 had only filed injunction petition in the learned lower court below, but all the other plaintiffs have common interest in the property in Patna High Court MA No.176 of 2016 (5) dt.09-08-2017 2/4 question. Hence, all the plaintiffs being aggrieved and dissatisfied by the impugned order may file the appeal as per provision of the Order 41 Rule 4 CPC and Order 43 Rule 2 CPC. Hence, the appeal filed by the appellants is maintainable in the eye of law and the appellants are entitled to get relief of injunction as claimed in the aforesaid interlocutory application against the respondents.
3. Countering the aforesaid arguments of the appellants, the learned counsel for the respondent no. 1 and 2 submitted that any of the plaintiff having common interest in the property can challenge the decree and not any Order as per provision of the Order 41 Rule 4 CPC and Order 43 Rule 2 CPC, does not apply in the case under hand as it is applicable in the procedural matter and not in the substantive matter like injunction.
4. On perusal of the records, it appears that the plaintiff no. 6 of Tile Suit no. 520 of 2007 had filed injunction petition under Order 39 Rule-(1)(2) read with Section 151 of the Code of Civil Procedure for restraining the defendant nos. 1 and 2, not to dispossess her from the peaceful possession of the disputed property and not to waste, damage, alienate and sell as also not to execute a decree passed in Execution Case no. 41 of 2011 till final disposal of the Title Suit no. 520 of 2007 with the case that the plaintiffs in suit are members of the Christina Minority Patna High Court MA No.176 of 2016 (5) dt.09-08-2017 3/4 Community, having faith in Christianity and have interest in the property situated in Bakerganj, Patna popularly known as Church compound Bakerganj in which a Church known as Bapist Union Church is situated. The description of the said property has been given in Schedule-I of the plaint. The said property is of and for the church and for the entire congregations who are the followers and worshipers of the Christian Community and are associated with the said Church. But defendant nos. 1 and 2 by their illegal and wrongful act are trying to grab the said property by depriving the entire Christian Community of Patna. The aforesaid injunction petition was rejected by the learned Sub-Judge-III, Patna vide order dated 11.01.2016.
5. Being aggrieved and dissatisfied with the impugned order other plaintiffs who also happen to be members of Christian Minority Community and are followers and worshipers of the Christian Community and are associated with the said Church, have filed this appeal.
6. From the perusal of the injunction petition filed by the plaintiff, it appears that all other plaintiffs have common interest in the property in question, but only plaintiff no. 6 has filed the aforesaid injunction petition with a prayer to restrain the respondent nos. 1 and 2 not to dispossess her from peaceful Patna High Court MA No.176 of 2016 (5) dt.09-08-2017 4/4 possession of the disputed property and not to waste, damage, alienate and sell as also not to execute a decree passed in Execution Case no. 41 of 2011 till final disposal of the Title Suit no. 520 of 2007. As the common interest of all the plaintiffs is likely to be jeopardised, hence in my considered opinion the plaintiffs have right to assail the impugned order by filing the Miscellaneous Appeal as per Order 41 Rule 4 C.P.C. which provides that when there are more plaintiffs or more defendants than one in a suit and the decree appealed from proceeds on any ground common to all the plaintiffs or to all the defendants, any of the plaintiffs or of the defendants may appeal from the whole decree and as per Order 43 Rule 2 CPC which provides that the Rules of Order 41 shall apply, so far as may be, to appeals from orders."
Moreover, the plaintiff no. 6 has been made as respondent no. 7 in the present appeal. Accordingly, the present appeal filed by the appellants is quite maintainable.
7. On consensus of both the parties, let this case be listed for "Hearing" under Order 41 Rule 11 CPC on 25th August, 2017.
(Prakash Chandra Jaiswal, J) rohit/-
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