Bombay High Court
Shivaji Narayan Tarange And ... vs Motilal Devichand Gadiya And ... on 10 July, 2017
Bench: S.P. Deshmukh
(Judgment) (1) W.P. No. 08718 of 2017
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
AURANGABAD BENCH, AT AURANGABAD.
Writ Petition No. 08718 of 2017
District : Osmanabad
1. Shivaji Narayan Tarange,
Age : 22 years,
Occupation : Agriculture,
R/o. Ratnapur,
Taluka Paranda,
District Osmanabad.
2. Swati Zumber @ Pappu Tarange,
Age : 32 years,
Occupation : Agriculture & Household,
R/o. Ratnapur, Taluka Paranda,
District Osmanabad.
3. Saudagar s/o. Angad Tarange,
Age : 16 years,
Being minor u/g. of
Sunita Angad Tarange
(Petitioner no.4).
4. Sunita Angad Tarange,
Age : 45 years,
Occupation : Agriculture & Household, .. Petitioners
R/o. Ratnapur, (Original defendants
Taluka Paranda, Dist. Osmanabad. no.3, 4, 5 & 6)
versus
1. Motilal Devichand Gadiya,
Age : 57 years,
Occupation : Agriculture & Business,
R/o. Village Anala,
Taluka Paranda,
District Osmanabad.
2. Dada Vyanka Markad,
Age : 60 years,
Occupation : Agriculture,
R/o. Ratnapur,
Taluka Paranda,
District Osmanabad.
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(Judgment) (2) W.P. No. 08718 of 2017
3. Narayan Maruti Tarange,
Age : 50 years,
Occupation : Agriculture,
R/o. Ratnapur,
Taluka Paranda,
District Osmanabad.
4. Angad Maruti Tarange,
Age : 52 years,
Occupation : Agriculture,
R/o. Ratnapur,
Taluka Paranda,
District Osmanabad. .. Respondents
(No.1 - Original plaintiff
5. Zumber @ Pappu Maruti Tarange, &
Age : 40 years, Nos.2 to 5 -
Occupation : Service (S.T. Driver), Original defendants
R/o. Ratnapur, Taluka Paranda, No.1, 2, 7 & 8)
District Osmanabad.
...........
Mr. V.S. Undre, Advocate, for petitioners.
Mr. Shoyab Shaikh, Advocate, for respondent
no.01 (caveator).
...........
CORAM : SUNIL P. DESHMUKH, J.
DATE : 10TH JULY 2017
ORAL JUDGMENT :
01. Learned Counsel for the petitioner fairly refers to that
respondents no.02 to 05 are co-defendants and may not be
necessary for adjudication of the petition. He, therefore, prefers to
go ahead with the Writ Petition since respondent no.01 (caveator) -
plaintiff is already represented before the court.
02. Rule. Rule made returnable forthwith. Heard learned
Counsel for the parties by consent finally.
(Judgment) (3) W.P. No. 08718 of 2017
03. Petitioners are defendants no.03 to 06 in Special Civil
Suit No. 03/2016 filed by respondent no.01 for declaration of
ownership and perpetual injunction. Along with the suit, application
for temporary injunction was filed by the plaintiff which was allowed.
Aggrieved by the order under application - Exhibit 05, petitioners -
defendants no.03 to 06 have preferred Misc. Civil Appeal No.02/2017
before the appellate court. Along with the appeal, petitioners have
also filed an application for interim relief.
04. Learned Counsel for petitioners submits that while the
appeal and the application had been pending, yet the plaintiff -
respondent no.01 had preferred an application - Exhibit 66 before
trial court, seeking Police protection. Under the circumstances,
petitioners had filed an application - Exhibit 72 requesting to
postpone hearing of Exhibit 66 till disposal of the Misc. Civil Appeal.
Same has been rejected by the court observing as under :-
" Perused the application, say & record of the
case. Heard the learned advocate for plaintiff, as he
pointed out facts which are stated in say. The learned
advocate for defendant nos.3 to 8 is absent for
argument. No application for adjournment is filed. The
learned advocate for plaintiff shown urgency in the
matter. Hence application is taken up for disposal on
merit. Defendants no.3 to 8 have not filed copy of
appeal memo. Even as per contentions made in
application itself, there is no stay order. Furthermore,
no legal provision shown to stay proceeding. Hence, I
do not find merit in present application. Hence it is
hereby rejected. No order as to costs. "
(Judgment) (4) W.P. No. 08718 of 2017
05. Learned Counsel for petitioners submits that as a matter
of fact, the suit land and the land purchased by petitioners are
different lands having different Gut numbers and have no nexus to
each other. The order under appeal is untenable and during
pendency of the appeal, order of temporary injunction deserves to
be stayed and, as such, application - Exhibit 72 for deferring hearing
on application - Exhibit 66 should have been allowed by the trial
court.
06. Learned Counsel for respondent no.01 (caveator),
however, contends that the order is legal and proper. The court
before which the application has been made has no power to stay
the proceedings under Exhibit 66 and, as such, no fault can be found
with the order.
07. Having heard learned Counsel for petitioners and the
overall scenario, it is expedient that the Misc. Civil Appeal itself
would be heard and decided expeditiously. Since it is given to
understand that the application for interim relief under Misc. Civil
Appeal No. 02/2017 has been rejected, instead of getting obfuscated
by said order and refusal of the trial court to defer hearing, it would
be expedient and in the interest of justice, that Misc. Civil Appeal No.
02/2017 itself is proceeded with expeditiously and disposed of on
merits. It is given to understand that the appeal is posted for
hearing on 20th July 2017, before the appellate court.
08. In view of the aforesaid, the petition is disposed of
expecting that the appellate court would decide Misc. Civil Appeal
No. 02/2017 as expeditiously as possible and preferably before 31st
July, 2017. It is further expected that the trial court may defer
hearing on application Exhibit 66 till disposal of the Misc. Civil
(Judgment) (5) W.P. No. 08718 of 2017
Appeal. If hearing of the Misc. Civil Appeal is deferred for the
reasons attributable to petitioners, the trial court may proceed with
application - Exhibit 66 after 31st July, 2017.
09. Rule made absolute in the above terms. There shall be
no order as to costs.
( Sunil P. Deshmukh )
JUDGE
...........
puranik / WP8718.17
