Bombay High Court
Shri Subhash Bhiku Navarat : vs Balkrishna Kashiram Shigvan : on 17 November, 2011
Bench: R. M. Savant
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lgc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.8931 OF 2011
Shri Subhash Bhiku Navarat : Petitioner
versus
Balkrishna Kashiram Shigvan : Respondent.
Mr. K K Jadhav for the Petitioner.
Mr. Prafulla B Shah for the Respondent .
CORAM : R M SAVANT, J.
ig DATE : 17th November 2011
ORAL JUDGMENT.
1 Rule, by consent of the parties made returnable forthwith and
heard.
2 The above Petition has been directed against the order dated
27/9/2011 passed on the Application-Exhibit-6 which was an application for
temporary injunction, pending the Appeal filed by the Respondents herein
being Regular Civil Appeal No.29/11.
3 The Respondent herein is the original Plaintiff who has filed
Regular Civil Suit No.4/11 seeking perpetual injunction in respect of the suit
property mentioned in plaint Para 1A, and mandatory injunction/possession in
respect of the suit property mentioned in Para 1B of the plaint against the
Petitioner herein who is the Defendant in the said suit.
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4 The Defendant was put in possession of the area of 5 gunthas in
Survey No.26 Hissa No.2/1B which totally admeasures 81 R. By Sammati
Patra, the Plaintiff consented to the Defendant in putting up a poultry shed in
the said 5 gunthas, the Plaintiff is also the co-borrower with the defendant for
obtaining loan from one of the banks. In view of the fact that the Defendant
was seeking to encroach upon the balance area of 76 gunthas, that the said suit
came to be filed for the reliefs claimed therein. In the said suit, no prayer for
interim relief was made. The Plaintiff however filed an application which was
numbered as Exhibit-5 for restraining the Defendant from encroaching upon
the suit property mentioned in Para 1A of the plaint. Suffice it to say that the
said application for injunction was considered by the trial Court and on the
basis of the pleadings and the material on record and primarily considering the
fact that the injunction would prejudice running of the poultry business by the
defendant held that though no prima face case is out, the balance of
convenience being in favour of the Defendant, the interim injunction could not
be granted. The trial Court has in its order merely observed that the Plaintiff is
not in exclusive possession of 76 gunthas that is the property covered by Para
1A of the plaint. The impugned order does not disclose the reasons for arriving
at such a finding.
5 Being aggrieved by the the order refusing temporary injunction
dated 26/8/2011 passed by the learned Civil Judge, Junior Division, Dapoli,
the Defendants preferred an Appeal before the District Court. In the said
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Appeal an application Exhibit-6 came to be filed which, as indicated above, has
been allowed by the impugned order dated 27/9/2011.
6 The First Appellate Court whilst considering the said Application-
Exhibit-6 took into consideration the material on record which included Special
Civil Suit No.5/11 filed by the Defendant against the Plaintiff for specific
performance of the contract in respect of the alleged agreement of sale, of 30
gunthas of land in which suit the Defendant who is the Plaintiff has claimed
possession of the land covered by the said alleged agreement. The First
Appellate Court also took into consideration the Panchanama dated 5/1/2011
and recorded a finding that the said circumstance is too explicit to show that
the Defendant is not in possession of 30 gunthas of land from the suit property,
and that the said circumstance is sufficient to draw an inference that the
Defendant is bent upon creating obstructions in the peaceful cultivating
possession of the Plaintiff over residue suit property i.e. 76 gunthas. The First
Appellate Court, therefore, granted the said Application-Exhibit-6, pending the
Appeal.
7 Submissions and counter submissions have been made by the
learned counsel as regards the merits of the impugned order on Exhibit-6, in
my view, much can be said in favour of either sides. However, since the Appeal
filed by the Plaintiff against the order of the trial Court is pending, it would not
be necessary to deal with the rival contentions, as it is the First Appellate Court
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which would have to deal with the rival contentions in the said Appeal.
8 In my view, considering the facts and circumstances of the case, it
would be just and proper to maintain status quo on site as on date and direct
the First Appellate Court to dispose the said Appeal within a particular time
frame. The First Appellate Court is therefore directed to hear and decide the
said Appeal No.29 of 2011 within a period of three months from the first
appearance of the parties before it. The parties to appear before the First
Appellate Court on 28th November 2011. The First Appellate thereafter fixed
the schedule of hearing the said Appeal as per its convenience but dispose of
the same within the time stipulated as above. The operative part of the
impugned order dated 27/9/2011 is accordingly substituted by the aforesaid
directions.
9 Rule is accordingly made absolute in the aforesaid terms with the
parties to bear their respective costs.
[R.M.SAVANT, J]
