Bombay High Court
Dr. Sanjay Ganapati Birla And ... vs Narendrasingh Pralhad Girase on 23 August, 2016
Bench: S.P. Deshmukh
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drp
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
CONTEMPT PETITION NO.672 OF 2015
IN
SECOND APPEAL NO. 229 OF 2014
1. Dr. Sanjay Ganpati Birla PETITIONERS
Age - 48 years, Occ - Agriculturist and Doctor
R/o Main Road, Shahada,
Taluka - Shahada, District - Nandurbar
2. Sau. Vidya Sanjay Birla
Age - 47 years, Occ - Agriculturist and doctor
R/o Main Road, Shahada,
Taluka - Shahada, District - Nandurbar
VERSUS
Narendrasing Pralhad Girase RESPONDENT
Age - 31 years, Occ - Agriculturist
R/o Village Osarlil,
Taluka and District - Nandurbar
.......
Mr. V. P. Raje h/f Mr. C. R. Deshpande, Advocate for petitioners,
Mr. R. R. Mantri, Advocate for the respondent
.......
[CORAM : SUNIL P. DESHMUKH, J.]
DATE : 23rd AUGUST, 2016
Oral judgment :
1. Heard learned advocates for the parties.
2. The contempt petition has been moved by the respondents
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in second appeal No.229 of 2014 with civil application No.3389
of 2014 in which following order had been passed by this court
on 10th April, 2014:
"1. Heard both sides. Application is filed by the
appellant for interim relief. There is dispute over use of
some space situated on one side of the land of the plaintiff
and the defendant wants to use that portion as cart way.
Court Commissioner was appointed and the Court
Commissioner's report is considered by both Courts below.
Both Courts below have refused to presume the
easementary right and relief of injunction is granted in
favour of the plaintiff.
2. Attention of this Court was drawn to the order of
this Court in Appeal from Order No.26 of 2014 (Karbhari
V. Devidas). This Court has considered the provisions of
the Maharashtra Land Revenue Code and the rules made
in 1969 under the said Code. In view of the provision of
law on easementary rights, this Court holds that stay to the
decree of injunction can be granted only to the extent
mentioned by this Court in Appeal from Order No.26 of
2014. So following order:-
3. The defendant in the suit, appellant, will be entitled
to use only bandh situated between Gut Nos.103 and 104 .
It needs to be kept in existence as per Rule 4 of
Maharashtra Land Revenue (Boundary and Boundary
Mark) Rules, 1969 as 'foot path'. Both the sides not to
cause damage to his bandh which is in existence and which
is also noted by the Court Commissioner in the report. The
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width of the bandh is presumed to be 1.22 meters. This
interim relief is until disposal of the appeal. The civil
application is disposed of in the aforesaid terms. Second
Appeal No.229/2014 will be heard for admission purpose
on 12-6-2014.
4. Call for record and proceedings."
3. Learned advocate for contempt petitioners purports to
contend that width of bandh, which is required to be 1.22 meter
has been breached and for the same the original appellant -
respondent is guilty. For said purpose, he purports to rely on two
purported police complaints and certain photographs.
4. Learned advocate for original appellant - present
respondent contends that as far as the appellant is concerned,
he is abiding by the stipulation given under the order passed by
this court in civil application No.3389 of 2014 in second appeal
No.229 of 2014. He states that the appellant-respondent is
aware that breach at his instance would be adverse to the
interest of the interim relief secured by the appellant. Learned
advocate further states that as far as allegations with regard to
breach of width of bandh is concerned, police complaints filed by
the petitioners have no relevance, nor those depict any particular
imputation against the appellant - respondent in the contempt
petition, save some alleged verbal abuses. He submits that these
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are got up contentions and there is no veracity in the same. He
submits that the photographs cannot be relied on and it cannot
be said with certainty that if at all there is breach of width of
1.22 meter, the same can be specifically attributed to the
appellant-respondent, for, he points out that the two maps
annexed to the affidavit in reply filed by the appellant-
respondent show that there are several land holders, who are
using said bandh as access to their fields. He further states that
his client is abiding by the stipulation under the order of this
court.
5. Having regard to aforesaid, it does not appear to be a case
wherein an imputation of contempt of court can be maintained
against the appellant - respondent. The documents, viz., two
complaints before the police authorities do not specifically allege
breach of width of bandh by the appellant - respondent. The
photographs, which are relied upon, in the face of situation as is
claimed to be depicted by the maps are not seriously disputed by
the present petitioners. Breach of the order, if any, cannot be
straightway attributed to the appellant. It is not a case wherein it
can be said that the appellant - respondent can be considered
having committed contempt of court.
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6. In addition to the above, in the affidavit in reply it has
specifically stated that the appellant - respondent has highest
regard for the court and its procedure and that if any mistake is
committed, he tenders unconditional apology and further it has
been stated in the affidavit that the appellant - respondent is
following the order of this court denying that damage, if any, is
caused by the appellant - respondent.
7. In view of aforesaid, it does not appear to be gross and
clear case of contempt of court. Contempt petition, as such,
stands dismissed and is disposed of.
[SUNIL P. DESHMUKH, J.]
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