Bombay High Court
Ganesh S/O Maroti Ghodekar, And 3 ... vs Shiwaji Sakharam Podhade on 6 June, 2016
Bench: A.S. Chandurkar
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH
NAGPUR.
WRIT PETITION NO. 293 OF 2015
1] Ganesh Maroti Ghodekar
aged 26 yrs. Occu. Hawker.
2] Maroti Raghoji Ghodekar
aged 50 yrs. Occu. Hawker.
Both R/o Asangalli, Risod
Tq. Risod, Distt. Washim. ig
3] Ramkisan Haribhau Shinde
(Thakur), aged 25 yrs.
Occu. Hawker.
4] Haribhau Mptiram Shinde,
aged 53 yrs. Occu. Hawker.
Both R/o Mahatma Fule Nagar,
Risod Distt. Washim. PETITIONERS.
VERSUS
Shivaji Sakharam Podhade,
aged 43 yrs. Occu. Small Scale
Businessman, R/o Risod, Distt.
Washim. RESPONDENT.
Shri R. L. Khapre, Advocate for the petitioners.
Shri A. M. Jaltare, Advocate for the respondent.
CORAM: A. S. CHANDURKAR J.
Dated : JUNE 06, 2016.
ORAL JUDGMENT:
In view of notice for final disposal the learned counsel for the
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parties are heard at length.
2] The petitioners are the original defendants who are aggrieved by
the order passed by the appellate Court allowing the application for
temporary injunction that was moved by the respondent-original plaintiff.
The respondent had filed the suit for permanent injunction seeking to
restrain the petitioners from obstructing his approach way to his shop. The
trial Court refused to grant temporary injunction but the appellate Court by
order dated 24.07.2014 granted the same.
3] Shri R. L. Khapre, the learned counsel for the petitioners by
relying upon the copy of the lease granted by the Sub Divisional Officer
submitted that respondent was in occupation of larger premises than what
was granted under the lease. He submitted that the Appellate Court was not
justified in allowing the application for temporary injunction.
4] Shri A. M. Jaltare, the learned counsel for the respondent
supported the impugned order. According to him the petitioners had no legal
right to obstruct the access of the respondent to his shop. He submitted that
the Municipal Counsel had initiated steps to remove the encroachment and
obstruction caused by defendant nos. 3 and 4 was already removed.
5] It can be seen that the order of injunction that was passed by the
Appellate Court has been operating since 24.07.2014 that is for almost two
years. During pendency of the suit the Municipal Council had initiated steps
for removal of encroachment by issuing notice to the petitioners. It is
submitted that the petitioners had responded to aforesaid notice and their
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representations in that regard are pending.
6] In these aforesaid facts I do not find that this is a fit case to
exercise writ jurisdiction to interfere with the impugned order. However, the
interests of justice would be served by granting an opportunity to the
petitioners to apply to the trial Court under provisions of Order XXXIX Rule
IV of the Code of Civil Procedure, 1908 in case any subsequent events occur
warranting variation of the order of temporary injunction. If such variation
of the interim order is sought, the observations made by the Appellate Court
in the order dated 24.07.2014 shall not influence the Court considering such
application.
As the suit is of the year 2011, the proceedings are expedited.
The trial Court shall decide the suit by the end of March 2017 on its own
merits without being influenced by any observations made in this order.
The writ petition is disposed of with no order as to costs.
JUDGE
svk
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