Bhagwan Venkati Peddawad vs Suryakant Venkati Peddawad
2016 Latest Caselaw 418 Bom

                                                                         WP 9573/13
      
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              IN THE HIGH COURT OF JUDICATURE AT BOMBAY

                         BENCH AT AURANGABAD                                            




                                                  
                      
                                        WRIT PETITION NO.9573 OF 2013




                                                 
                      Bhagwan s/o Venkati Peddawad,
                      Age : 71 years,  Occu.Agri & Pensioner,
                      R/o: D-8, Melody Apartment,
                      12-ICS Colony, Pune.
                                         ...Petitioner...




                                         
                                Versus
                                  
                       Suryakant s/o Venkati Peddawad,
                       Age : 73 years, Occu. Agri.& Medical
                       Practitioner, R/o : Nalgir, Tq. Udgir,
                                 
                       Dist.Latur, At Present R/o :
                       Bunglow No.31, Bhagyanagar,
                       Nanded.
                                           ...Respondent... 
      

                          .....   
    Shri A.N. Nagargoje, Advocate for petitioner. 
   



    Shri A.G. Godhamgaonkar, Advocate for respondent.
                          .....
                                          
                                 CORAM: RAVINDRA V. GHUGE, J. 

DATE: 08.03.2016

ORAL JUDGMENT :

1] Rule. Rule made returnable forthwith and heard

finally by the consent of the parties.

2] The petitioner is aggrieved by the order dated

11.6.2013 passed by the trial Court thereby allowing

application (Exh.27) and ordering Police protection to

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the respondent - plaintiff. The petitioner - original

defendant is also aggrieved by the order dated 3.10.2013

by which application (Exh.34) filed by the respondent for

recalling the order of "No WS" and permitting the

petitioner to file his written statement. By the

impugned order, application (Exh.34) has been rejected.

3] I have heard the learned Advocates for the

respective sides for quite some time.

4] The litigating sides are biological brothers.

Regular Civil Suit No.228/2011 has been filed by the

respondent - original plaintiff seeking perpetual

injunction as against the petitioner to the extent of

half share of the agricultural lands bearing Survey

No.184/1 admeasuring 3 H 98 R, land Survey No.42/6

admeasuring 24 R and land Survey No.187/3 admeasuring 1 H

80 R. So also the house property bearing No.455 situated

at village Nalgir Tq.Udgir is also subject matter of the

suit.

5] It is undisputed that application (Exh.5) filed

by the respondent - plaintiff under Order XXXIX Rule 1 of

the Code of Civil Procedure, 1908, seeking injunction

against the petitioner has been allowed ex-parte as the

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petitioner - defendant failed to file his written

statement and say. It is also undisputed that "No WS"

order was passed on 20.4.2013.

6] The petitioner has preferred an application for

recalling of the "No WS" order on 5.8.2013. The trial

Court, by the impugned order dated 3.10.2013, has

concluded that it does not have the jurisdiction to deal

with the said application. I am of the view that

considering the fact that the application for recalling

"No WS" order was filed without much delay, the trial

Court should have allowed the application so as to ensure

that the suit would be decided on its merits. The delay

caused does not appear to be either inordinate or

deliberate. The petitioner gains no advantage by causing

delay in filing the written statement and suffering an

order of "No WS".

7] In the light of the above, the impugned order

dated 3.10.2013 is quashed and set aside. The petitioner

has made a statement that the written statement has

already been filed on record alongwith the said

application (Exh.34), which, therefore, stands allowed.

The written statement shall be taken on record.

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8] The petitioner has also challenged the order

dated 11.6.2013 by which application (Exh.27) filed by

the petitioner seeking Police protection for implementing

the temporary injunction order has been allowed. It is

trite law that Police protection can be granted by the

trial Court only in exceptional circumstances and in

rarest of rare situations. The remedy for ensuring the

implementation of the temporary injunction order passed

under Order XXXIX Rule 1 is available under Order XXXIX

Rule 2 of the CPC. Without taking recourse to the

available remedy, application (Exh.27) was filed.

9] Notwithstanding the above, since the temporary

injunction order is an ex-parte order, the petitioner can

surely move an application before the trial Court for

recalling of the ex-parte order, after the filing of the

written statement. If such an application is filed, the

trial Court can decide the same on its own merits and in

accordance with law.

10] It is in these circumstances and after

considering the contention of the respondent that the

petitioner may move the trial Court for recalling the ex-

parte order of injunction, I am not causing any

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interference in the impugned order dated 11.6.2013.

Needless to state that grant of Police protection

pursuant to the ex-parte injunction order will always be

subject to the result of the application, for seeking

the vacating of the ex-parte order, if filed by the

petitioner.

11] In the light of the above, this petition is

partly allowed to the extent of prayer clause (A). Rule

is made partly absolute in the above terms.

(RAVINDRA V. GHUGE, J.)

ndk/c831618.doc