Sulochanabai Laxman Kolhe vs The State Of Maharashtra And ...
2016 Latest Caselaw 4287 Bom

                                          {1}                           wp8166-16

     drp
             IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                        BENCH AT AURANGABAD




                                                                         
                         WRIT PETITION NO.8166 OF 2016




                                                 
     Sulochanabai Laxman Kolhe                                     PETITIONER
     Age - 59 years, Occ - Household,
     R/o Indira Path, Adjacent to the
     Hospital of Dr. Adhav, Kopargaon,




                                                
     District - Ahmednagar

              VERSUS




                                        
     1.       The State of Maharashtra                        RESPONDENTS
              Through the District Collector,


     2.
                             
              District - Ahmednagar

              Joint Director of the Town Planning,
              Office of the Town Planning,
                            
              Savitribai Fule Sankul,
              Sawedi, Ahmednagar,
              District - Ahmednagar
      

     3.       The Chief Officer,
              Municipal Council, Kopargaon,
   



              Taluka - Kopargaon, District - Ahmednagar

     4.       Dr. Pritam Balasaheb @ Raosaheb Jape,
              Age - 36 years, Occ - Medical Practic
              R/o Jape Orthopedic Clinic,





              Indira Path, Kopargaon,
              Taluka - Kopargaon,
              District - Ahmednagar

                                     .......

Mr. Milind Patil, Advocate for the petitioner Mr. S. K. Tambe, AGP for respondent-State Mr. V. D. Hon, Sr. Advocate i/b Mr. A. V. Hon, Advocate for R-4 .......

                                   [CORAM : SUNIL P. DESHMUKH, J.]

                                     DATE : 29th JULY, 2016





                                               {2}                                wp8166-16

     ORAL JUDGMENT :




                                                                                  

1. Rule. Rule made returnable forthwith and heard learned

advocates for the appearing parties finally with consent.

2. The petitioner, who has instituted regular civil suit No.80 of

2014 in the court of Civil Judge, Senior Division, Kopargaon,

seeking declaration and mandatory injunction against the

defendants, including defendant No.4 - present respondent No.4

is before this court aggrieved by order dated 16 th July, 2016

passed by Joint Civil Judge, Senior Division, Koparagaon on

Exhibit-117.

3. While the petitioner had been before this court in writ

petition No.2866 of 2016 earlier, division bench, under its order

dated 3rd May, 2016 has directed as under -

"1. Heard. Mr. Patil, learned counsel submits that for almost 2 years, the application for injunction was not decided by the trial court and respondent No.4 has completed the construction also. In the light of that, at

least now, the suit be directed to be disposed of expeditiously. It is submitted that the pleadings are complete.

2. We have also heard Mr. Hon, learned Senior Counsel for respondent No.4, Mr. M. M. Patil Beedkar, Advocate and learned AGP for respondent No.1.

{3} wp8166-16

3. Considering that no interim orders are in operation,

the learned trial Judge shall endeavour to dispose of the suit expeditiously, preferably within one year. Parties to

cooperate in the expeditious disposal of the suit. Writ petition is accordingly disposed of. No costs."

4. Thereafter, the suit is being proceeded with and several

applications on either side appear to have been filed.

5. Application Exhibit-117 has been moved by the petitioner,

to take up hearing on applications Exhibits-6 and 8 and other

applications viz., Exhibits 25, 43, 58, 66, 75, 100 and 101.

6. Mr. Milind Patil, learned advocate appearing for the

petitioner vehemently contends that impugned order is an

example of absolute non application of mind to underlying

intention of the high court while passing order in writ petition

No.2866 of 2016. He submits that it cannot be said that the

direction for expeditious disposal of the suit has undertone of

direction to overlook intervening stages involved in making the

suit ready for hearing. The applications, in fact, are the stages,

which generally and compulsively, intermediate, preparing the

matter ready for hearing of a suit and without undergoing and

complying with such stages a suit would not be considered to be

ripe for hearing. He, therefore, submits that the impression,

{4} wp8166-16

which had been carried by trial court while passing the

impugned order, is not only wholly misplaced but also is entirely

erroneous.

7. Mr. Hon, learned senior advocate appearing for respondent

No. 4 - defendant No.4, however, tries to look at the matter from

a different angle. He submits that it is in fact a suit which has

been filed by the petitioner and had, while the matter had been

before the division bench in writ petition No.2866 of 2016,

impressed upon the court that the petitioner is in tearing hurry

for expeditious disposal of the suit. However, thereafter, it

appears that petitioner's intention has undergone a sea change.

According to learned senior advocate it appears to be a strategy

of the petitioner to prolong and procrastinate the suit

proceedings in order to cause obstacles in attaining the purpose

for which construction has been carried out by defendant No.4

and to make use of pendency of the suit for the same. He

submits, therefore, applications one after the other are being

filed, which according to learned senior advocate, are estimated

to lengthen life of the suit. He submits that, therefore,

mischievously, once again despite the order passed by the

division bench dated 3rd May, 2016, petitioner under Exhibit-117

makes reference to Exhibits-6 and 8, whereas a decision thereon

{5} wp8166-16

would be a foregone conclusion in the wake of the order passed

by the high court in writ petition No.2866 of 2016. He submits

that the mischievous intention can be gathered from the reliefs

which are sought under application Exhibit-117. As a matter of

fact said application was not called for, but had been deliberately

filed and order has been obtained on the same with a view to

take up matter before this court to further procrastinate the suit

proceedings. He submits that it is intriguing as to why the

petitioner should be eager to have decision on applications

Exhibits-25 and 43, which do not concern him. As a matter of

fact, looking at the intention to prolong, it is intriguing as to why

petitioner has asked for decision on Exhibit-100.

8. One will have to take into consideration the applications on

which hearing has been sought under Exhibit-117. Exhibits-25

and 43 appear to be applications by defendant No.4 - present

respondent No.4 for production of documents. Exhibit-58 has

been filed by the petitioner seeking rejection of counter claim.

Parties do not appear to be aware exactly for what purpose

Exhibit-66 has been filed. Exhibit-75 is injunction sought by

defendant No.4 in his counter claim in the suit, whereas

application Exhibit-100 is an application by present petitioner -

plaintiff for production of documents and Exhibit-101 is for

{6} wp8166-16

taking up application Exhibit-100 for early hearing.

9. After hearing learned advocates for the parties, apparently,

the submissions on either side may not be conducive to progress

of the suit as would be required pursuant to order of the division

bench. It will have to be borne in mind that the division bench

did not intend to direct the court to jump over procedurally

intervening stages. As a matter of fact, the period given for

disposal of the suit implies, the court had taken notice of that

intermediate stages would be consuming some time which are

with a view to facilitate decision making on rights claimed by the

parties.

10. As such, looking at the nature of the applications, which

have been filed by present petitioner, hearing on which is being

insisted upon, will have to be given due regard.

11. As far as application Exhibit-100 for production of

documents is concerned, it is at an intermediate stage under the

procedure. Applications Exhibit-25 and 43 are also for production

of documents, the same may as well can be decided as would be

in the case of Exhibit-100. As such, said exhibits be decided

expeditiously, preferably within a fortnight from receipt of writ of

this order. The same also to quite large extent sub-serves

{7} wp8166-16

intention underlying order passed by the division bench.

12. Application Exhibit-58 appears to be an application for

rejection of counter claim before a stage wherein issues are yet

to be framed. In the circumstances, there does not appear to be

a hitch for decision thereon, which may in a way facilitate further

course in a definitive direction.

13. Any orders on aforesaid exhibits, however, hereinafter

would be looked up to by this court circumspectively, since

parties may have sufficient opportunity, if they are aggrieved by

order on these applications pursuant to section 105 of the Civil

Procedure Code, if the orders are not appealable, under

provisions of the Code of Civil Procedure. This is being observed

in order to obviate further procrastination of litigation upon

orders on these exhibits by the trial court. Though fate of

Exhibit-75 would depend on order on Exhibit-58, it is not a

matter which would be an intermediate stage for going ahead

with direction of division bench.

14. In view of that Exhibits-6 and 8 were already part of writ

petition and division bench having passed orders in writ petition

No.2866 of 2016, as such, said Exhibits would stand precluded

from consideration.

{8} wp8166-16

15. Writ petition, as such, is disposed of with following order.

i. Petitioner's applications Exhibits-58 and

100 be decided as early as possible, preferably,

within a period of a fortnight from the date of

receipt of writ of this order so would be the

case in respect of applications Exhibits-25 and

43 filed by defendant No.4.

ii.

Impugned order is maintained in respect

of Exhibits-6 and 8.

iii. Rule is made absolute in aforesaid terms.

16. Aforesaid observations are for the purpose of disposal of

the writ petition and would not carry efficacy any further. The

observations shall not influence decision making on merits in the

suit and the applications.

[SUNIL P. DESHMUKH, J.]

drp/wp8166-16