High Court of Judicature at Allahabad
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Upendra Nath Pandey & Others v. State Of U.P. & Others - MATTERS UNDER ARTICLE 227 No. 299 of 2007  RD-AH 6411 (6 April 2007)
Hon'ble V.C. Misra, J.
Issue notice to the respondents returnable within six weeks through registered post with acknowledgement. In addition to the normal mode of service, the petitioner is permitted to serve the respondents personally and shall file an affidavit of service by the next date of listing. Requisite steps be taken within one week.
This application under Article 227 of the Constitution of India has been filed invoking supervisory jurisdiction of this Court by the applicant being aggrieved by the impugned order dated 9.3.2007 passed by the revisional Court upholding the order dated 30.3.2005 passed by the trial Court in Original Suit No.1542 of 2000 Smt. Somkali Vs. Tulsi Ram and others by which an issue was framed whether the Gaon Sabha is a necessary party or not and has been decided by holding that the Gaon Sabha was necessary party in the present proceedings in the original suit initiated against the defendant claiming relief of permanent injunction restraining him from demolishing the parapet (Jagat) around the well and wherein no relief whatsoever had been claimed against the Gaon Sabha nor the question of title/ownership was involved.
Learned counsel for the applicant has relied upon a decision of this Court in the case of Shitadin and others Vs. Board of Revenue, Uttar Pradesh, Allahabad and others reported in AIR 1963 Allahabad, Page 549, wherein it has been held that if relief can be claimed against two persons, but only one is impleaded as a defendant relief can be granted against him only; and not only this but also the fact that the other who has not been impleaded will not cause relief to be refused against one so impleaded the effect being that if these persons are not impleaded as defendants the suit would not fail.
I have perused the record and heard the learned counsel for the applicant at length and find that no relief has been sought against Gaon Sabha nor any relief regarding right, title or interest of the applicant-plaintiff has been sought for in the plaint in respect with the property against the Gaon Sabha rather the applicant has sought relief against the defendants restraining him from demolishing the parapet (Jagat) of the well of which he is owner.
Looking into the facts and circumstances of the case, I find that a prima facie case has made out in favour of the applicant, balance of convenience also tilts in her favour and irreparable loss and injury shall be caused to the applicant in case an ex parte interim order is not passed.
Till further orders of this Court the impugned orders dated 9.3.2007 passed by the revisional Court and 30.3.2005 passed by the Civil Judge, Junior Division, Allahabad shall remain stayed.
List immediately after expiry of six weeks.
April 6, 2007
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