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IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR BEFORE HON'BLE SHRI JUSTICE DUPPALA VENKATA RAMANA ON THE 10th OF JANUARY, 2024 MISC. PETITION No. 135 of 2024 BETWEEN:- 1. KAMLA JAISWAL D/O LATE SHRI PREMCHANDRA JAISWAL, AGED ABOUT 70 YEARS, R/O WARD NO. 3 BIRSINGHPUR PALI THANA AND TEHSIL PALI DISTRICT UMARIYA (M.P.) (MADHYA PRADESH) 2. ANDAND JAISWAL D/O LATE SHRI PREMCHANDRA JAISWAL, AGED ABOUT 40 YEARS, OCCUPATION: NOT MENTIONED WARD NO. 3, BRISINGHPUR PALI, THANA AND TAHSIL- PALI, DISTRICT UMARIYA (MADHYA PRADESH) 3. ALOK JAISWAL S/O LATE SHRI PREMCHANDRA JAISWAL, AGED ABOUT 37 YEARS, WARD NO. 3, BIRSINGHPUR PALI, THANA AND TAHSIL-PALI, DISTRICT UMARIYA, M.P. (MADHYA PRADESH) 4. MOUSHMI JAISWAL @ NEETU JAISWAL D/O LATE SHRI PREMCHANDRA JAISWAL, AGED ABOUT 42 YEARS, OCCUPATION: NOT MENTIIONED WARD NO. 3 , BRISHINGHPUR PALI, THANA AND TAHSIL- PALI, DISTRICT UMARIYA (MADHYA PRADESH) 5. MEENU JAISWAL W/O LATE SHRI PREMCHANDRA JAISWAL, AGED ABOUT 69 YEARS, OCCUPATION: NOT MENTIONED WARD NO. 3, BRISINGHPUR PALI, THANA AND TAHSIL- PALI, DISTRICT UMARIYA (MADHYA PRADESH) .....PETITIONERS (BY SHRI MANOJ KUSHWHA - ADVOCATE) AND 1. BABULAL S/O DURGA BARI, AGED ABOUT 46 YEARS, R/O R/O WARD NO. 3 BIRSINGHPUR PALI THANA AND TEHSIL PALI DISTRICT UMARIYA (M.P.) (MADHYA PRADESH) 2. DEENDAYAL S/O DURRADEEN BARI, AGED ABOUT YEARS, OCCUPATION: NOT MENTIONED WARD NO. 3, BRISINGHPUR PALI, THANA AND TAHSIL-PALI, DISTRICT UMARIYA (MADHYA PRADESH) 3. SANTOSH S/O BHONDU BARI, AGED ABOUT 44 YEARS, OCCUPATION: NOT MENTIONED WARD NO.3, BIRSINGHPUR PALI, THANA AND TAHSIL - PALI, DISTRICT UMARIA (MADHYA PRADESH) 4. MUNAIYA S/O BHONDU BARI, AGED ABOUT 41 YEARS, OCCUPATION: NOT MENTIONED WARD NO. 3, BRISINGHPUR PALI, THANA AND TAHSIL- PALI, DISTRICT UMARIYA (MADHYA PRADESH) 5. GUDDDA S/O BHONDU BARI, AGED ABOUT 39 YEARS, OCCUPATION: NOT MENTIONED WARD NO.3, BIRSINGHPUR PALI, THANA AND TAHSIL - PALI, DISTRICT UMARIA (MADHYA PRADESH) 6. UMASHANKAR BARI S/O RAMVISHAL BARI OCCUPATION: NOT MENTIONED WARD NO. 3, BIRSINGHPUR PALI, THANA AND TAHSIL-PALI, DISTRICT UMARIYA, M.P. (MADHYA PRADESH) 7. GHANSHYAM BARI S/O BRAJBHUSHAN BARI OCCUPATION: NOT MENTIONED WARD NO.3, BIRSINGHPUR PALI, THANA AND TAHSIL - PALI, DISTRICT UMARIA (MADHYA PRADESH) 8. T H E COLLECTOR COLLECTOR UMARIYA UMARIYA (MADHYA PRADESH) .....RESPONDENTS (SHRI GOPAL JAISWAL- PANEL LAWYER FOR THE RESPONDENT NO.8/STATE ) This petition coming on for admission this day, the court passed the following:
ORDER
Learned counsel for the petitioners/plaintiffs is present and stated that the petitioners/plaintiffs filed a suit for declaration and permanent injunction. Along with the suit, they filed an application under Order 39 Rule 1 and 2 of CPC for grant of injunction and the trial Court granted temporary injunction. Challenging (DUPPALA VENKATA RAMANA) the order of the trial Court respondents preferred an appeal before the appellate Court and the same was dismissed. Later on , when the suit came for trial, the plaintiffs did not adduce evidence inspite of adjournments and the trial Court dismissed the suit for non-prosecution. After coming to know about the same, the petitioners/plaintiffs filed an application under Order 9 Rule 9 of CPC to restore the file on its original file and the trial Court dismissed the application.
Challenging the order of dismissal, the petitioners/plaintiffs preferred an appeal before the First Appellate Court and the appeal is pending.
While pending the petition before the First Appellate Court, the respondents making constructions in the subject property, which is much cause prejudice to the petitioners/plaintiffs and they filed application before the trial Court under Order 39 Rule 1 and 2 of CPC read with 151 of Cr.P.C. seeking relief not to proceed further construction and the trial Court dismissed the same on the ground that when the suit is not existing how this petition is maintainable.
Challenging the order petitioners/plaintiffs filed this present petition. When the Court pointed out how petitioners/plaintiffs are entitled to file a fresh petition before the Trial Court when the suit is not existing, then the counsel for the petitioners/plaintiffs came forward to withdraw the petition.
The submissions made by learned counsel for the petitioners/plaintiffs are recorded.
Accordingly, this petition is dismissed as withdrawn with the liberty to raise the questions before this Court, which was raised before the First Appellate Court.
JUDGE K.S. JUDGE K.S.
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