The court upheld the grant of permission under Sec. 91 of CPC, emphasizing the need for reasoned and judicious exercise of the power to grant leave. The court also emphasized the requirement for the plaint to disclose cause of action before rejecting an application under Order VII Rule 11 of CPC.

JUDGMENT

1. This civil revision application is filed by the original defendant no.1 for challenging the order dtd. 21/3/2011 passed by learned Civil Judge, Junior Division, Jamner below Exhibit-24 in Regular Civil Suit No.30 of 2011 as well as order dated 14 th March, 2011 passed by learned Civil Judge, Junior Division, Jamner on an application made under Sec. 91 of the Code of Civil Procedure 1908 ("CPC"). By order dtd. 21/3/2011, an application at Exhibit 24 filed by the present petitioner under Order VII Rule 11 of CPC was rejected. By order dtd. 14/3/2011, an application filed by respondent nos.1 to 3 under Sec. 91 of CPC was allowed, thereby granting permission to them to institute the suit. Pursuant to the permission granted under Sec. 91 of CPC, respondent nos.1 to 3 instituted Regular Civil Suit No.30 of 2011 against the petitioner and respondent no.4, praying for a declaration that the applicant had no right to carry out new construction and/or carry out repairs and/or use the suit property in any manner. Respondent nos.1 to 3 also prayed for a decree directing the petitioner to demolish the construction on the suit property. Suit property described in the plaint is city survey no.2016, Gram Panchayat Property No.791 admeasuring 239.25 square feet situated at, Mauje Pahur Kasabe Gram Panchayat, Taluka Jamner, District Jalgaon ("the suit property").

2. Respondent nos.1 to 3 filed an application under Sec. 91 of CPC, thereby contending that the respondent no.4 - Gram Panchayat was trying to alienate the suit property without following any due process and the petitioner has started carrying out unauthorized construction on the suit property. It was contended by the respondent nos.1 to 3 that the suit property is owned by the Gram Panchayat and it is for the purpose of benefit of the public and hence, it had to be used only for public purpose. It was further contended that the suit property is situated at the entrance of the village and is used for ingress and egress as well as for common public purpose. With these contentions, the permission was sought under Sec. 91 of CPC to institute the suit in public interest on the ground that due to the unauthorized use of the suit property, there was likelihood of public nuisance.

3. The application filed by respondent nos.1 to 3 was allowed on the same day and Regular Civil Suit No.30 of 2011 was instituted. The petitioner was served with the suit summons and he appeared in the suit and filed his written statement on 19 th March, 2011. On the same day, the petitioner also filed an application under Order VII Rule 11 of CPC praying for rejection of the plaint on the ground that there was no cause of action to file suit, and that, the suit was not properly valued. Respondent nos.1 to 3 filed their reply and opposed the said application.

4. Respondent Nos.1 to 3 had also filed an application at Exhibit- 25 praying for appointment of a Court Commissioner for the purpose of local inspection of the construction on the suit property. By order dtd. 21/3/2011, the said application was also allowed and Court Commissioner was appointed for the purpose of local inspection of the suit property.

5. After hearing all the parties, the learned Trial Judge rejected the application filed by the petitioner under Order VII Rule 11 of CPC. Feeling aggrieved by the said order dtd. 21/3/2011, applicant has filed the present civil revision application. By way of this civil revision application, the petitioner has also challenged the order dtd. 14/3/2011, granting permission to respondent nos.1 to 3, under Sec. 91 of CPC for instituting the suit. Civil revision application was admitted for final disposal.

SUBMISSIONS ON BEHALF OF PETITIONER:

6. Learned counsel appearing for the petitioner submitted that there was no application of mind at the time of allowing the application filed by respondent nos.1 to 3 under Sec. 91 of CPC. There was no notice issued to the petitioner and no opportunity of hearing was given