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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR.
WRIT PETITION NO.7006 OF 2017
PETITIONER: Chandrakant Wasudeoji Pande, Aged
(Ori. Defendant) about 55 years, Occ: Agriculturist, R/o
Main Road, Telhara, Taluka Telhara,
Dist. Akola.
5. Premkumar S/o Rambilasji Agrawal,
Aged: Adult, Occ: Business, R/o Jai
Ambe Steel, New MIDC, Jalna.
-VERSUS-
RESPONDENT: Inspire Big Shopee Pvt. Ltd., Siddhi Bk.,
Through Rameshwar Anandrao Mahale,
aged about 37 years, Occ: Business, R/o
in front of Police Station, Telhara, in the
Commercial Complex of Makkhanseth
Rathi, Telhara, Taluka Telhara, Dist.
Akola.
Shri A. R. Deshpande, Advocate for the petitioner.
Shri V. B. Bhise, Advocate for the respondent.
CORAM: A.S. CHANDURKAR, J.
DATED: NOVEMBER 24, 2017.
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ORAL JUDGMENT :
1. By this writ petition filed under Article 227 of the Constitution of India, the order passed by the first appellate Court in the Misc. Civil Appeal No.15/2017 filed by the petitioner herein is under challenge.
2. The respondent is the original plaintiff who had filed suit for declaration and permanent injunction. It is the case of the respondent that the shop premises admeasuring about 1800 square feet belonging to the petitioner was taken on lease by the respondent. A document dated 2-12-2015 came to be executed in that regard. The respondent was running his business therein. On 22-7-2017, it is stated that the petitioner and his son removed the banners put by the respondent and sought to take forcible possession of the shop premises. The report came to be lodged and on 24-7-2017 the suit for declaration and permanent injunction came to be filed.
3. In that suit, an application for temporary injunction was moved. The trial Court after considering the material on record found that on the date when the suit was filed, the respondent was in possession. The possession of the petitioner was found to be obtained after filing of the suit. Hence, while granting the application, the petitioner was directed to restore ::: Uploaded on - 29/11/2017 ::: Downloaded on - 30/11/2017 01:12:12 ::: WP7006.17.odt 3/5 possession of the property. Being aggrieved the petitioner filed a miscellaneous appeal. The appellate Court while maintaining said order imposed certain additional conditions to safeguard the interests of the parties. Being aggrieved the defendant has filed this writ petition.
4. Shri Anand Deshpande, learned Counsel for the petitioner submitted that the consent deed dated 2-12-2015 on the basis of which the respondent was claiming possession did not indicate that he was put in possession. The photographs sought to be relied upon by the respondent were falsified in view of the subsequent affidavit filed by the photographer himself. Before the appellate Court, additional documents were placed to indicate that the respondent was not in possession. He submitted that the direction for handing over possession by way of an interim measure could be done only in rare cases and the present case was not such which warranted passing of such direction. Under the garb of the interim order, the respondent sought to enter into possession. Reliance was placed on the decision in Dorab Cawasji Wardn v. Coomi Sorab Warden and others AIR 1990 SC 867.
5. Shri V. B. Bhise learned Counsel for the respondent supported the impugned order. According to him, the respondent was in settled possession of the shop premises on the basis of ::: Uploaded on - 29/11/2017 ::: Downloaded on - 30/11/2017 01:12:12 ::: WP7006.17.odt 4/5 various documents including the no objection certificate issued by the Municipal Council. The subsequent affidavit filed by the photographer was after passing of the order by the trial Court. Without amending the pleadings the petitioner sought to rely upon the additional documents. He therefore submitted that both the Courts having found the plaintiff to be in possession when the suit was filed the said order do not call for any interference. He placed reliance on the judgment in Suchetan Exports P. Ltd. vs. G. C. I. Ltd. 2011(5) Mh.L.J. 475 and Mir. Baziay Ali V. Jagirdar Nirkhy Mir Mahammad Ali and ors AIR 2006 AP 131.
6. Having heard the learned Counsel for the parties and having perused the documents placed on record, I find that the trial Court has on the basis of material placed before it arrived at the prima facie conclusion that on the date when the suit was filed, the plaintiff was in possession. For arriving at this finding it took into consideration documents filed by both sides. The appellate Court confirmed these findings by observing that prima facie the permission of the plaintiff on 22-7-2017 was established. I find that both the Courts have taken into consideration the material placed on record and have granted interim relief in favour of the plaintiff. Same material cannot be re-appreciated in writ jurisdiction for arriving at another conclusion. Further the ::: Uploaded on - 29/11/2017 ::: Downloaded on - 30/11/2017 01:12:12 ::: WP7006.17.odt 5/5 directions issued by the appellate Court safeguard the interests of both the side and I find them proper. Having viewed the matter in the light of observations made in paragraph 14 of the decision in Dorab Cawasji Warden (supra), I do not find any case made out for interference.
7. By clarifying that observations made by the Courts while deciding application for temporary injunction shall not influence the trial Court while deciding the suit and by expediting the proceedings in the suit, the writ petition is disposed of.
JUDGE /MULEY/ ::: Uploaded on - 29/11/2017 ::: Downloaded on - 30/11/2017 01:12:12 :::