Bombay High Court
Municipal Council Pathri Through ... vs Dilip Mariba Dhawale And Another on 25 July, 2017
Bench: S.P. Deshmukh
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 8295 OF 2017
Municipal Council, Pathri,
Tq. Pathri, District-Parbhani,
Through: its Chief Officer ...Petitioner
(Ori. Defendant No. 1)
Versus
1. Dilip s/o Mariba Dhawale
Age-47 years, Occu. Agri.,
R/o Bhimnagar, Pathri,
Tq. Pathri Dist. Parbhani.
2. Shaikh Shafi Shaikh Vajir,
Age-53 years, Occu. Business,
R/o c/o Ruksana Chaus,
Shahu Nagar, Pathri, Tq. Pathri,
District-Parthani ...Respondents
(No. 1-Ori. Plaintiff)
(No.2-Ori. Deft. No. 2)
...
Mr. Manish P. Tripathi, Advocate for petitioner
Mr. Suresh P. Salgar, Advocate for respondent no. 1
...
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8295.2017WP.odt
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[CORAM: SUNIL P. DESHMUKH, J.]
Date: 25th July, 2017
JUDGMENT :
1. Heard learned counsel for the parties.
2. Petitioner is Municipal Council established as per the
provisions of Maharashtra Municipal Council, Nagar
Panchayat and Industrial Township Act, 1966.
3. Petitioner - Municipal Council issued notice to
respondents to remove structure alleging encroachment
over public road situated at Shahu Nagar. Respondent no.
1 challenged demolition notice dated 24th September, 2015
by way of filing regular civil suit no. 69 of 2015 before
learned civil judge, junior division, Pathri and prayed for
perpetual injunction. Petitioner - Municipal Council
appeared and filed its written statement and resisted the
claim of respondent no. 1. After hearing the parties, civil
judge, junior division, Pathri dismissed the suit filed by
respondent no. 1.
4. Being aggrieved by the judgment and decree dated
10th November, 2016, respondent no. 1 approached the
district judge, Parbhani in regular civil appeal bearing no.
137 of 2016 which is pending.
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5. Writ petition has been moved against Judgment and
order dated 21st January, 2017 passed by district judge-2,
Parbhani on application exhibit-5 in regular civil appeal no.
137 of 2016, staying operation of demolition notice dated
24th September, 2015.
6. Learned counsel for the petitioner contends that trial
court has decided the suit on merits after considering
evidence on record and, hence, the application ought to
have been rejected.
7. Learned counsel for respondent no. 1, however,
submits that appeal against decree in regular civil suit no.
69 of 2015 is pending. He points out that interim relief had
been operating in favour of respondent no. 1, during the
pendency of suit.
8. Learned counsel for respondent no. 1, further submits
that looking at prima facie case, irreparable loss and
balance of convenience appellate court had observed that if
execution of notice dated 24th September, 2015 is allowed
then the purpose of preferring appeal may be frustrated.
Appellate court has further referred to section 107 of the
Code of Civil Procedure, pursuant to which appellate court
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has all the power of the court of original jurisdiction.
Section 151 of the Code of Civil Procedure empowers the
court to pass appropriate order as may be necessary to
meet the ends of justice.
9. Appellate court in paragraph no. 5 of the impugned
order has observed thus;
" 5. After hearing both the parties, I have
gone through the record. Preferring the first
appeal is statutory right given to the aggrieved
party. This is being the first appeal and if
respondent No. 1 executed it's act as shown in
the show cause notice dated 24.09.2015 then
very purpose of preferring the appeal will be
frustrated. Technical objection raised by the
respondent No. 1 that the Trial Court has not
passed any executable decree. As per section
107 of the Code of Civil Procedure, appellate
Court has all the powers of the Court of
original jurisdiction. Section 151 of the Code
of the Civil Procedure also empowers the court
to pas any order as may be necessary for the
ends of justice. In the facts and circumstances
of the case, in my opinion, it is just and proper
to allow the application as the right of the
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parties yet not determined finally. Hence,
application (Exh.5) deserves to be allowed".
10. Having regard to aforesaid, it does not appear that
appellate court has committed any error and it is not the
case whereunder discretion under writ jurisdiction shall be
exercised. Impugned order, as such, does not call for
interference.
11. Writ petition, therefore, stands rejected.
12. Learned counsel for petitioner at this stage submits
that appeal may be directed to be proceeded with
expeditiously.
13. Having regard to aforesaid, it is expedient that if the
appeal is ready, same would be proceeded with
expeditiously and be disposed of preferably within a period
of nine months from the date of receipt of writ of this order.
[SUNIL P. DESHMUKH, J.]
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