Rajiv Sharma, J. - (1.) HEARD Sri S.K. Mehrotra, learned Counsel for the defendant/revisionist and Sri Sudeep Seth, learned Counsel for the plaintiffs/respondents Nos. 1 and 2 and Sri Vivek Pandey, learned Counsel for the opposite parties Nos. 3, 5 and 7 and Sri Ashok Kumar Verma, learned Counsel for the opposite party No. 6 and learned Standing Counsel for opposite party No. 4. Through the instant civil revision under section 115 of the Code of Civil Procedure, defendant/revisionist challenges the order dated 2.4.2010 passed in Regular Suit No. 175 of 2001 by Civil Judge (Senior Division), Balrampur, rejecting the preliminary objection against the maintainability of the suit.
(2.) SHORN off unnecessary details, the facts of the case are that plaintiffs/respondents Nos. 1 and 2, namely, Rang Nath Pandey and Vinay Kumar Pandey, have filed a suit for permanent and mandatory injunction against the defendant/revisionist, praying therein for restraining the defendant/revisionist from installing a brick kiln or its chimney upto a distance of 1.5 kms. to the east and west of plaintiffs' grove No. 779 and 833 and within a distance of 300 meters from the above plots in the direction of North and South and further prohibiting to grant licence for setting up a brick kiln or for mining of earth on plot No. 738 of the defendant/revisionist within 1.5 Kms. from the grove No. 779 and 833 in its east and west direction. The said suit was registered as Regular Suit No. 175 of 2001. Notices were issued to the defendants and in response thereof, defendant/revisionist as well as U.P. Pollution Control Board/defendant No. 5/respondent No. 6 appeared and filed their written statements. According to the defendant/revisionist, in the above suit, an application for interim injunction under Order XXXIX, Rules 1 and 2 of the Code of Civil Procedure was also filed by the plaintiffs/respondents Nos. 1 and 2, which was rejected by the Trial Court vide order dated 19.5.2006. Feeling aggrieved, plaintiffs/respondents Nos. 1 and 2 has approached this Court by filing FAFO No. 604 of 2006. A Division Bench of this Court, vide judgment and order dated 17.11.2009, disposed of the said F.A.F.O. with the direction to the Civil Judge (Senior Division), Balrampur to decide Regular Suit No. 175 of 2001 by 31st May, 2010 and further directed the parties to maintain status quo as it exists on 17.11.2009, till 31st May, 2010. Thereafter, the written arguments were filed before the Trial Court, stating therein that the suit be rejected under Order VII, Rule 11 of the Code of Civil Procedure insofar as plaintiffs/respondents Nos. 1 and 2 are aggrieved with the orders passed by the Pollution Control Board for issuing N.O.C. and the other orders passed in favour of the brick kiln of the revisionist. On raising the preliminary objection by the U.P. Pollution Control Board that the suit in question is barred by the provisions of Air (Prevention and Control of Pollution) Act, 1981, the Trial Court, after hearing the parties, vide order dated 2.4.2010, decided the said objection in favour of the plaintiffs/respondents Nos. 1 and 2 and against the defendant/revisionist. Hence, the instant revision.
(3.) WHILE assailing the impugned order dated 2.4.2010, Sri S.K. Mehrotra, learned Counsel for the revisionist/defendant submits that impugned order passed by the Court below amounts to refusal to exercise jurisdiction under Order VII, Rule 11 of the Code of Civil Procedure. He submits that the Court below has erred in not considering the fact that the identical objections by the plaintiffs/respondents Nos. 1 and 2 including their processors raised before the U.P. Pollution Control Board, the Adhyaksh Zila Panchayat Gonda and the District Magistrate, Balrampur and the same had already been rejected and become final without any further proceedings prescribed under law being taken by them leaving no cause of action for the plaintiffs to raise the same objection in the present suit. But even then, the Court below proceeded with the matter and decided the question "whether the suit in question is barred by the provisions of under Air (Prevention and Control of Pollution) Act, 1981" in favour of the plaintiffs without following the Clause (a) of Rule 11 of Order VII of the Civil Procedure Code.;