Bombay High Court
Jayshree Keshav Deshpande ... vs Somnath Narayan Kulthe on 17 July, 2017
Bench: S.P. Deshmukh
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drp
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.8870 OF 2017
WITH
WRIT PETITION NO.8871 OF 2017
Smt. Jayshree w/o Keshav Deshpande PETITIONER
Age - 55 years, Occ - Household
Through Power of Attorney Holder
Shri. Laxmikant Keshav Deshpande,
Age - 58 years, Occ - Labourer
R/o Ward No. 3, Deshpande Chall,
Shivaji Road, Taluka - Shrirampur
District - Ahmednagar
VERSUS
Shri. Somnath Narayan Kulthe RESPONDENT
Age - 48 years, Occ - Service,
R/o Somaya Organic Factory,
Labour Colony, Survey No. 2,
Room No. F-8, Purchase Office,
Kanhegaon (Sakharwadi),
Taluka - Kopargaon, District - Ahmednagar
.......
Mr. Rahul A. Tambe, Advocate for the petitioner
Mr. V. P. Latange, Advocate for the respondent
.......
[CORAM : SUNIL P. DESHMUKH, J.]
DATE : 17th JULY, 2017
ORAL JUDGMENT :
1. Rule. Rule made returnable forthwith and heard finally with
consent of learned advocates for the parties.
2. Aggrieved by orders dated 7th July, 2017 passed by District
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Judge-2 Shrirampur in Miscellaneous Civil Appeals No. 2 of 2017
and 19 of 2016, in respect of same disputed property, the
petitioner is before this court in two writ petitions.
3. Writ petition No. 8870 of 2017 pertains to Regular Civil
Suit No. 282 of 2016 instituted by the petitioner for injunction
against the respondent in respect of disputed property. Whereas
writ petition No. 8871 of 2017 pertains to Regular Civil Suit No.
251 of 2016 instituted by respondent for injunction restraining
the petitioner from demolition of suit property.
4. In regular civil suit No. 282 of 2016 instituted by the
petitioner, he had preferred temporary injunction application
Exhibit-5, which came to be granted by the trial court under
order dated 8th March, 2017 restraining the respondent from
causing obstruction to construction of new building at the suit
property. Against said order dated 8th March, 2017, respondent
preferred Miscellaneous Civil Appeal No. 2 of 2017 before District
Court, Shrirampur.
5. Whereas, temporary injunction application Exhibit-5 in
Regular Civil Suit No. 251 of 2016 filed by the respondent had
been rejected by trial court under order dated 8th December,
2016. Against the same, Miscellaneous Civil Appeal No. 19 of
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2016 had been preferred by the respondent.
6. Both, Miscellaneous Civil Appeals No. 19 of 2016 and 2 of
2017 were being simultaneously heard by the appellate court.
Hearing of said matters went on for quite some time. During the
course of said proceedings certain material was sought to be
produced on behalf of the respondent.
7. During pendency of these appeals, petitioner had moved
for police protection before trial court, which application had
been rejected and as such, writ petition No. 6244 of 2017 has
been filed by the petitioner, which is pending before this court.
During pendency of said writ petition, appellate court
purportedly has decided both aforesaid Miscellaneous Civil
Appeals, remanding the matters for hearing before trial court,
setting aside orders passed by trial court on temporary
injunction applications of respective sides for re-decision
thereon, taking into account material being placed before
appellate court.
8. Learned advocate for the petitioner states that as a matter
of fact, whatever material was sought to be produced, could
have been seen by appellate court and decided the matters
instead of sending the matters back to trial court. Learned
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advocate for the petitioner submits out that orders passed by
appellate court are rendered perfunctory, as those would not
disclose objective application of mind and although there was no
relief operating in the appeals, has purported to continue the
same till decision on temporary injunction applications.
9. Learned advocate submits that this is a case wherein
appellate court ought to have applied its mind to material sought
to be produced and having regard to observations of the
Supreme Court in the case of "Ashwinkumar K. Patel V/s Upendra J.
Patel" reported in 1999 AIR (SC) 1125 : 1999 AIR (SCW) 780: 1999 (3) SCC
161. He particularly refers to and stresses on paragraphs No. 8
and 9 of said judgment, reading, thus-
" 8. In our view, the High Court should not ordinarily remand a case under
order 41 Rule 23 Civil Procedure Code to the lower court merely
because it considered that the reasoning of the lower court in some
respects was wrong. Such remand orders lead to unnecessary delays and
cause prejudice to the parties to the case. When the material was
available before the High Court, it should have itself decided the appeal
one way or other. It could have considered the various aspects of the
case mentioned in the order of the Trial court and considered whether
the order of the Trial court ought to be confirmed or reversed or
modified. It could have easily considered the documents and affidavit
and decided about the prima facie case on the material available. In
matters involving agreements of 1980 and 1996 on the one hand and an
agreement of 1991 on the other, as in this case, such remand orders
would lead to further delay and uncertainty. We are, therefore, of the
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view that the remand by the High Court was not necessary.
9. We have also considered whether, on that account, we should
send back the matter to the High Court for consideration of the appeal.
We are of the view that on the facts of this case, this court can decide
whether the temporary injunction granted by the Trial court should be
confirmed or not. We are, therefore, not remitting the matter to the High
court because a further remand would lead to delay and perhaps one
more special leave petition to this court. "
10. Learned advocate for the respondent submits that since
certain documents have been produced and appellate court has
considered it appropriate to send the matters back, it cannot be
termed as erroneous orders.
11. Perusal of impugned orders shows that the miscellaneous
civil appeals had been lingering on for quite some time for orders
of appellate court. Looking at the observations in "Ashwinkumar
K. Patel's case (supra) being referred to and relied upon on
behalf of the petitioner, in the facts and circumstances of the
case, it appears to be expedient that appellate court itself goes
on with the matters and decides the same expeditiously taking
into account material as is sought to be produced by the parties
concerned.
12. As such, both the writ petitions stand allowed. Rule is
made absolute in terms of prayer clause "B". Impugned orders
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dated 7th July, 2017 passed by District Judge-2 Shrirampur in
Miscellaneous Civil Appeals No. 2 of 2017 and 19 of 2016 stand
set aside. Both the miscellaneous civil appeals stand restored
before appellate court. District Judge-2, Shrirampur to proceed
with the appeals so restored as expeditiously as possible and
dispose of the same, giving adequate opportunity to parties
concerned, by 4th August, 2017.
[SUNIL P. DESHMUKH, J.]
drp/wp8870-17
