The application under Order 1 Rule 8 CPC can be filed at any stage of the suit and should be decided on its own merits without regard to the stage at which it was filed.

ORDER :

Prakash Gupta, J.

1. 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.

2. 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 pendency 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.

3. 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 Dadupanthy 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 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.

4. 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.

5. Heard. Considered.

6. 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."

7. 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 1 Rule 8 CPC shall be heard and decided on its own merits by the trial court.

8. Both the parties are directed to appear before the Trial Court in this regard on 1.3.2021.

9. The writ petitions stand disposed of accordingly.