Bombay High Court
Chandrakant Wasudeoji Pande vs Inspire Big Shopee Pvt. Ltd. ... on 24 November, 2017
Bench: A.S. Chandurkar
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR.
WRIT PETITION NO.7006 OF 2017
PETITIONER: Chandrakant Wasudeoji Pande, Aged
(Ori. Defendant) about 55 years, Occ: Agriculturist, R/o
Main Road, Telhara, Taluka Telhara,
Dist. Akola.
5. Premkumar S/o Rambilasji Agrawal,
Aged: Adult, Occ: Business, R/o Jai
Ambe Steel, New MIDC, Jalna.
-VERSUS-
RESPONDENT: Inspire Big Shopee Pvt. Ltd., Siddhi Bk.,
Through Rameshwar Anandrao Mahale,
aged about 37 years, Occ: Business, R/o
in front of Police Station, Telhara, in the
Commercial Complex of Makkhanseth
Rathi, Telhara, Taluka Telhara, Dist.
Akola.
Shri A. R. Deshpande, Advocate for the petitioner.
Shri V. B. Bhise, Advocate for the respondent.
CORAM: A.S. CHANDURKAR, J.
DATED: NOVEMBER 24, 2017.
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ORAL JUDGMENT :
1. By this writ petition filed under Article 227 of the
Constitution of India, the order passed by the first appellate Court
in the Misc. Civil Appeal No.15/2017 filed by the petitioner herein
is under challenge.
2. The respondent is the original plaintiff who had filed
suit for declaration and permanent injunction. It is the case of the
respondent that the shop premises admeasuring about 1800 square
feet belonging to the petitioner was taken on lease by the
respondent. A document dated 2-12-2015 came to be executed in
that regard. The respondent was running his business therein. On
22-7-2017, it is stated that the petitioner and his son removed the
banners put by the respondent and sought to take forcible
possession of the shop premises. The report came to be lodged
and on 24-7-2017 the suit for declaration and permanent
injunction came to be filed.
3. In that suit, an application for temporary injunction
was moved. The trial Court after considering the material on
record found that on the date when the suit was filed, the
respondent was in possession. The possession of the petitioner
was found to be obtained after filing of the suit. Hence, while
granting the application, the petitioner was directed to restore
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possession of the property. Being aggrieved the petitioner filed a
miscellaneous appeal. The appellate Court while maintaining said
order imposed certain additional conditions to safeguard the
interests of the parties. Being aggrieved the defendant has filed
this writ petition.
4. Shri Anand Deshpande, learned Counsel for the
petitioner submitted that the consent deed dated 2-12-2015 on the
basis of which the respondent was claiming possession did not
indicate that he was put in possession. The photographs sought to
be relied upon by the respondent were falsified in view of the
subsequent affidavit filed by the photographer himself. Before the
appellate Court, additional documents were placed to indicate that
the respondent was not in possession. He submitted that the
direction for handing over possession by way of an interim
measure could be done only in rare cases and the present case was
not such which warranted passing of such direction. Under the
garb of the interim order, the respondent sought to enter into
possession. Reliance was placed on the decision in Dorab Cawasji
Wardn v. Coomi Sorab Warden and others AIR 1990 SC 867.
5. Shri V. B. Bhise learned Counsel for the respondent
supported the impugned order. According to him, the respondent
was in settled possession of the shop premises on the basis of
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various documents including the no objection certificate issued by
the Municipal Council. The subsequent affidavit filed by the
photographer was after passing of the order by the trial Court.
Without amending the pleadings the petitioner sought to rely upon
the additional documents. He therefore submitted that both the
Courts having found the plaintiff to be in possession when the suit
was filed the said order do not call for any interference. He placed
reliance on the judgment in Suchetan Exports P. Ltd. vs. G. C. I. Ltd.
2011(5) Mh.L.J. 475 and Mir. Baziay Ali V. Jagirdar Nirkhy Mir
Mahammad Ali and ors AIR 2006 AP 131.
6. Having heard the learned Counsel for the parties and
having perused the documents placed on record, I find that the
trial Court has on the basis of material placed before it arrived at
the prima facie conclusion that on the date when the suit was filed,
the plaintiff was in possession. For arriving at this finding it took
into consideration documents filed by both sides. The appellate
Court confirmed these findings by observing that prima facie the
permission of the plaintiff on 22-7-2017 was established. I find
that both the Courts have taken into consideration the material
placed on record and have granted interim relief in favour of the
plaintiff. Same material cannot be re-appreciated in writ
jurisdiction for arriving at another conclusion. Further the
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directions issued by the appellate Court safeguard the interests of
both the side and I find them proper. Having viewed the matter in
the light of observations made in paragraph 14 of the decision in
Dorab Cawasji Warden (supra), I do not find any case made out
for interference.
7. By clarifying that observations made by the Courts
while deciding application for temporary injunction shall not
influence the trial Court while deciding the suit and by expediting
the proceedings in the suit, the writ petition is disposed of.
JUDGE
/MULEY/
