JUDGMENT Hon’ble Sanjay Misra, J.—Heard Sri P.N. Saxena learned Senior Counsel assisted by Sri Mukesh Kumar Kushwaha for the appellant Sri S.K. Verma learned Senior Counsel assisted by Sri Siddharth Verma learned counsel for some of the plaintiff respondents and Sri A.K. Gaur learned counsel appearing on behalf of the respondent No. 37 Union of India. 2. Sri S.K. Verma while pressing his application for vacation of the interim order has submitted that the interim order passed by the Division Bench could not have been passed in view of the decision in the case of Harish Chander Verma v. Kayasth Pathshala Trust and Others, JT 1988 (1) SC 625. 3. The interim order dated 9.5.2011 passed by the Division Bench is quoted here under : “The counsel for the appellant submits that; It is not necessary that overbridge be marked in the master plan; The average number of trains passing through the railway crossing is about 51 per day and the railway crossing gate remains closed most of the time; The average number of vehicles passing through the railway crossing is about 1,7157 because of this, traffic jams are common; The technical team of the Railways, UP bridge Corporation and Ghaziabad Development Authority (GDA) had given the report that the bridge is feasible; No private land is being taken for construction of the over bridge and only the land of the GDA and the Railway is being taken; The construction of the over bridge is not only necessary but it is in the public interest. Admit. Issue notice. Till further orders of this Court the operation of the impugned order dated 17.3.2011 shall remain stayed. However, the over bridge will beconstructed at the risk of the appellant. In case the appellant ultimatelly loses the case then it will be remove the same.” 4. Sri Verma has referred to paragraphs 1, 2 and 3 of the judgment in Harish Chander Verma’s case (supra) which are quoted here under : “Special leave granted. Heard learned counsel for the parties. When the suit for permanent injunction was pending the question of interim injunction had come before the High Court and when the High Court had granted injunction at the instance of the present appellant the respondent moved this court by way of special leave petition and the same was dismissed. Heard learned counsel for the parties. When the suit for permanent injunction was pending the question of interim injunction had come before the High Court and when the High Court had granted injunction at the instance of the present appellant the respondent moved this court by way of special leave petition and the same was dismissed. The suit has now been deemed ad permanent injunction had been ordered against the respondents. In appeal against the decree for permanent injunction the High Court by the impugned order has permitted the defendant-respondent herein to raise construction subject to the condition that in the event of the decree being affirmed the construction shall have to be pulled down. Apart from the convenience the parties and equity arising in the facts of the case, a larger principle is involved in the matter. On the face of a decree for permanent injunction is it appropriate for the appellate court to allow it to be nullified before the appeal is disposed of. We are of the view that the answer has to be in the negative. We accordingly allow the appeal, vacate the order of the High Court and direct status quo as existing today to continue during the pendency of the appeal before the High Court. The High Court is requested to dispose of the appeal within six months from the date of the receipt of this order.” 5. He has also referred to the decision in the case of Assistant Collector of Central Excise, Chandan Nagar, West Bengal v. Dunlop India Ltd., AIR 1985 SC 330 and has submitted that the Supreme Court deprecated the practice of granting interim order which practically gives the principle relief sought in the petition for no better reason than that a prima facie case has been made out without being concerned about the balance of convenience the public interest and host of relevant considerations. 6. He has also referred to a decision of Supreme Court in the case of G. Kamala Rao v. K. Jawahar Reddy and another, JT 2000 (4) SC 351 and refers to paragraphs 4 and 5 therein. Paragraphs 4 and 5 are quoted here under : “We fail to understand the logic of the High Court’s order. 6. He has also referred to a decision of Supreme Court in the case of G. Kamala Rao v. K. Jawahar Reddy and another, JT 2000 (4) SC 351 and refers to paragraphs 4 and 5 therein. Paragraphs 4 and 5 are quoted here under : “We fail to understand the logic of the High Court’s order. When an application under Order 39 Rule 2A has been decided on merits and an appeal against the said order has been admitted, we would expect the High Court to decide the appeal on merits rather than avoiding a decision thereon and at the same time directing that the order of the trial court should be held in abeyance. The effect of stating that the order should be held in abeyance would, in fact, tantamount to the High Court allowing the appeal without, at the same time, deciding the same on merits. We, accordingly, allow this appeal, set aside the impugned judgment of the High Court and direct the High Court to decide C.M.A. No. 2391/99 on merits as expeditiously as possible.” 7. Sri Verma has also referred to a decision in the case of Ram Rameshwari Devi and others v. Nirmala Devi and others, 2011 (8) SCC 249 and refers to paragraph 44 therein to submit that the court should be very cautious and extremely careful while granting ex parte ad-interim injunction. Paragraph 44 is quoted here under : “Usually the court should be cautious and extremely careful while granting ex parte ad interim injunctions. The better course for the court is to give a short notice and in some cases even dasti notice, hear both the parties and then pass suitable biparte orders. Experience reveals that ex parte interim injunction orders in some cases can create havoc and getting them vacated or modified in our existing judicial system is a nightmare. The better course for the court is to give a short notice and in some cases even dasti notice, hear both the parties and then pass suitable biparte orders. Experience reveals that ex parte interim injunction orders in some cases can create havoc and getting them vacated or modified in our existing judicial system is a nightmare. Therefore, as a rule, the court should grant interim injunction or stay order only after hearing the defendants or the respondents and in case the court has to grant ex parte injunction in exceptional cases then while granting injunction it must record in the order that if the suit is eventually dismissed, the plaintiff or the petitioner will have to pay full restitution, actual or realistic costs and mesne profits.” Sri Verma has submitted that the interim order in this appeal was an ex parte interim order and therefore the law laid down by the Supreme Court in paragraph 44 ought to have been meticulously followed. 8. Sri Verma has further referred to a decision of the Supreme Court in the case of Wander Ltd. and another v. Antox India P. Ltd., 1990 (5) SCC 727 and refers to paragraph 14 of the judgment to submit that when an appeal is filed against an order wherein the Trial Court has exercised its discretion the appellate court will not reassess the material and seek to reach a conclusion different from one reached by the court below if the one reached by that court was reasonably possible on the material. Sri Verma while referring to U.P. Urban Planning and Development Act 1973 has submitted that when there is no provision for construction of such bridge in the master plan then the construction cannot be made which would be violative of the existing master plan itself. He has also placed reliance on a decision passed in the case of M/s Ram & Co. Colonizers and others v. State of Uttar Pradesh and others, 1982 AWC 283. 9. It is also submitted by Sri Verma that some of the plaintiff respondents had filed caveat in the High Court under Section 148-A of the Code of Civil Procedure for the purpose that in case the injunction order passed by the Trial Court is assailed in an appeal before the High Court the said plaintiff respondents be heard. 9. It is also submitted by Sri Verma that some of the plaintiff respondents had filed caveat in the High Court under Section 148-A of the Code of Civil Procedure for the purpose that in case the injunction order passed by the Trial Court is assailed in an appeal before the High Court the said plaintiff respondents be heard. According to him the caveat was filed on 23.3.2011 and the present appeal was presented on 12.4.2011 however the stamp reporter had reported that no caveat has been filed. Sri Verma has referred to the judgment of this court in the case of Committee of Management, Janta Inter College, Bhopa, District Muzaffarnagar v. Deputy Director of Education, I Region, Meerut and others, 1996 (1) UPLBEC 313, to state that once caveat has been lodged the person had a right to be heard before any order is passed by the court. The order passed behind the back of the party cannot be sustained in the eyes of law. He has also submitted that no rejoinder-affidavit has been filed to the counter-affidavits filed by the plaintiff respondents in this appeal and as such in view of the decision in the case in Bux Singh v. Joint Director of Consolidation, U.P. Lucknow and Others, AIR 1966 All 156 , the averments in the counter-affidavit being un-controverted due to non filing of rejoinder-affidavit the same must be accepted as true and correct. 10. Sri P.N. Saxena on the other hand appearing for the defendant appellant has assailed the impugned order for the reason that none of the three ingredients required to be considered for grant of an injunction have been taken into account by the Trial Court and as such the impugned order cannot be sustained. His further submission is that the plaintiffs had no cause of action to bring the suit inasmuch as they have not filed it in a representative capacity and upon perusal of the plaint it is quite apparent that it is their vested interest which is involved particularly in view of the averments made that the plaintiff respondents have encroached upon the land which was an existing road. He has also submitted that insofar as the construction of overbridge is concerned the same is being made over the railway line at the spot where there was an existing railway level crossing and it is not as if the State or the Ghaziabad Development Authority or the appellants have acquired or taken over land of any of the plaintiffs. 11. According to him the land belongs to the railways where the overbridge is being constructed and the road is constructed on the land belonging to the Ghaziabad Development Authority therefore when the plaintiffs are not owners of the land in question they have no right to obtain an injuction against the true owner. According to him there is no averment in the plaint as to what irreparable loss can be suffered by the plaintiffs if the overbridge is made over the railway level crossing. According to him insofar as the U.P. Urban Planning Development Act 1973 is concerned admittedly under the master plan there is no provision of building an overbridge at the spot in dispute but Sri Saxena argues that it would not effect the construction of the overbridge for the reason that the overbridge for crossing the railway line is being build where there is already an existing railway level crossing and the bridge is sought to be made at the same level crossing. 12. On the submission made by learned counsel for the plaintiff respondents he submits that insofar as the appellant U.P. State Bridge Corporation Ltd. is concerned it was impleaded as a defendant in the suit and therefore it cannot be argued that the Corporation cannot maintain this appeal. Sri Saxena states that once an order has been passed against the defendants or any or all of the defendants they are always free to challenge the same in case they are aggreived. He further states that in case the Ghaziabad Development Authority and the other defendants did not file any appeal it would not in any manner affect rights of the Bridge Corporation to maintain this appeal more particularly when the Bridge Corporation has been assigned/given the work of constructing the bridge over the railway level crossing. 13. He further states that in case the Ghaziabad Development Authority and the other defendants did not file any appeal it would not in any manner affect rights of the Bridge Corporation to maintain this appeal more particularly when the Bridge Corporation has been assigned/given the work of constructing the bridge over the railway level crossing. 13. According to him the impugned order in case it is set aside on the appeal filed by the Bridge Corporation the benefit of the same would naturally go to the other defendants also in case they are aggrieved and even then have not filed an appeal against the same. 14. Having considered the submission of learned counsel for the parties and perused the record as also the law cited by them it appears that there are two aspects of the matter in the submission made on behalf of the plaintiff respondents. The first is that the interim order passed by the Division Bench could not have been passed in view of the law cited by him. It will be seen that under the interim order dated 9.5.2011 the court has suspended and stayed the operation of the order passed by the Trial Court whereby permanent injunction was granted in favour of the plaintiff respondents. Once such order has been stayed it is quite apparent that the injunction is to be kept in abeyance. There cannot be any dispute about the effect of an interim order passed in appeal. 15. Insofar as this submission is concerned if an order is passed which is alleged to be illegal or beyond jurisdiction it is the appellate forum over such order that can either stay it or affirm it. In a stay vacation application being considered by a Single Judge as provided in the Allahabad High Court Rules an interim order passed by a Division Bench the Single Judge cannot rule that the same is beyond jurisdiction or illegal. Therefore the first submission made by learned counsel for the plaintiff respondent cannot be adjudicated in this stay vacation application by a Single Judge to hold that the interim order passed by the Division Bench is illegal or without jurisdiction. 16. Therefore the first submission made by learned counsel for the plaintiff respondent cannot be adjudicated in this stay vacation application by a Single Judge to hold that the interim order passed by the Division Bench is illegal or without jurisdiction. 16. Insofar as the vacation of the interim order dated 9.5.2011 passed by the Division Bench is concerned the application under the Rules of Court is maintainable before a Single Judge therefore while considering the stay vacation application the interim order is required to be seen as to why it should be vacated and why it should not be vacated. That consideration is to be made on the facts and circumstances of the case as pleaded by the parties. That is the limited jurisdiction of a Single Judge in an appeal cognizable by a Division Bench. 17. From the record it is quite apparent that the plaintiffs have not filed the suit in a representative capacity. They allege personal injury and inconvenience by construction of the road which is likely to be widened after construction of the overbridge and thus render the plaintiffs to use only the five metre road for their colony. The plaintiffs have further not pleaded any public interest which is being violated except to say that the investment on the construction of the bridge by the Bridge Corporation will involve public money and in case ultimately the bridge is to be removed by demolition it is the public money that shall go waste. Clearly it is not in the mouth of the plaintiffs in this application to take a public cause when they have not filed the suit in a representative capacity and on the earlier occasion when they had filed a public interest litigation it was dismissed as withdrawn. That circumstance indicates that no element of public interest is involved in the suit. 18. Insofar as the cause of action for bringing the suit is concerned that also is a matter which has to be raised and decided in this appeal itself by the Division Bench and therefore making any observation while considering the stay vacation application on that will be improper. 19. The interim order clearly mentions that no private land is being taken for construction of the overbridge and the only land that is being used is of Ghaziabad Development Authority and the Railways. 19. The interim order clearly mentions that no private land is being taken for construction of the overbridge and the only land that is being used is of Ghaziabad Development Authority and the Railways. Therefore when the settled position of law is that an injunction cannot be obtained against the true owner it would apply in the present instance because the Ghaziabad Development Authority the Railway Authorities and the appellant U.P. State Bridge Corporation Ltd. having jointly conducted feasbility inspection/report and have taken a decision to construct the overbridge therefore to restrain the agent U.P. State Bridge Corporation Ltd. from constructing the bridge over the land not belonging to the plaintiffs would in fact be granting an injunction against the true owner which could not have been done unless a clear finding was recorded that the plaintiffs had right, title or interest over the land in question. 20. Insofar as the loss which is likely to occur to the U.P. State Bridge Corporation Ltd. is concerned the Division Bench was quite clear in its interim order dated 9.5.2011 where it said that if the U.P. State Bridge Corporation Ltd. loses the case then it will remove the bridge. The court has passed the interim order and it is for the U.P. State Bridge Corporation Ltd. to take a call upon it to either construct it at its own risk or not construct it till pendency of the appeal. In case the plaintiff respondent alleges the interim order passed in this appeal to be illegal or without jurisdiction then this stay vacation application is not the remedy to declare the interim order passed by a Division Bench as illegal or without jurisdiction. On the facts pleaded herein there is no ground made out to vacate the interim order dated 9.5.2011. For the aforesaid reasons the interim order dated 9.5.2011 does not require to be vacated. The stay vacation application stands disposed of. No order is passed as to costs. —————