Bombay High Court
Bhaskar S/O Vasudev Wararkar And ... vs Mahadev S/O Ganpati Wararkar on 2 May, 2017
Bench: Z.A. Haq
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
WRIT PETITION NO.6963/2016
1. Bhaskar S/o Vasudev Wararkar,
aged about 54 Yrs., Occu. Agriculturist,
Resident of village Ghonad,
PO : Sakharwahi, Tehsil - Bhadrawati,
District Chandrapur.
2. Sukhdev S/o Dakoji Khobragade,
aged about 65 Yrs., Occu. Retired/Agriculturist,
Resident of Belewadi, Tukumb,
Tehsil & District Chandrapur. ..Petitioners.
..Vs..
Mahadev S/o Ganpati Wararkar,
aged about 77 Yrs., Occu. Retired
Government Employee, Resident of
At/PO: Ghonad, Tehsil Bhadrawati,
District Chandrapur. ..Respondent.
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Mrs. U.A. Patil, Advocate for the petitioners.
Shri Rohit Joshi, Advocate for the respondent.
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CORAM : Z.A.HAQ, J.
DATE : 2.5.2017.
ORAL JUDGMENT
1. Heard Mrs. U.A. Patil, Advocate for the petitioners and Shri Rohit
Joshi, Advocate for the respondent.
2. Rule. Rule made returnable forthwith.
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3. The defendants take exception to the judgment passed by the
learned District Judge by which the application filed by the
respondent - plaintiff under Order 43 Rule 1(r) of the Code of Civil Procedure
is allowed, the order passed by the trial Court rejecting the application
(Exh. No.5) is set aside and temporary injunction is granted in favour of the
plaintiff restraining the defendants from interfering with the possession of the
plaintiff over the suit field.
4. The learned Advocate for the petitioners-defendants has pointed out
that in the application (Exh. No.5), the plaintiff prayed only for an order of
temporary injunction restraining the defendants from creating third party rights
over the suit field and the plaintiff had not prayed for temporary injunction
restraining the defendants from obstructing his possession over the suit field.
However, I find that in paragraph No.9 of the application (Exh. No.5) the
plaintiff pleaded that the defendants are trying to illegally dispossess him from
the suit field and they be restrained from interfering with the possession of
plaintiff over the suit field.
5. The submission on behalf of the petitioners - defendants is that as
the plaintiff had not prayed for temporary injunction restraining the defendants
from interfering with the alleged possession of plaintiff over the suit field, the
defendants are deprived of opportunity of defending on that point. I find
substance in the submission made on behalf of the petitioners - defendants.
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6. Hence the following order:
(i) The judgment passed by the District Court in M.C.A. No.29/2016 on
14th November, 2016 is set aside.
(ii) The order passed by the trial Court on application (Exh. No.5) on
18th October, 2016 is also set aside.
(iii) The application (Exh. No.5) filed by the plaintiff is restored.
(iv) The trial Court shall decide the application (Exh. No.5) afresh,
according to law.
(v) The parties are at liberty to amend their pleadings and to file
additional documents, if so advised.
(vi) Considering the facts of the case, the trial Court is directed to decide
the application (Exh. No.5) till 30th June, 2017.
Rule made absolute in the above terms.
In the circumstances, the parties to bear their own costs.
JUDGE
Tambaskar.
