Parbhat Govind Sonawane vs Ashok Manjahari Kadam
2017 Latest Caselaw 9087 Bom

                                   1                          WP-1296-14


             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                        BENCH AT AURANGABAD

                       WRIT PETITION NO. 1296 OF 2014



Parbat s/o Govind Sonawane
Age 57 years, occup. Agril.,                      .. Petitioner /
R/o Bhaygaonganga,                                   Original
Taluka Vaijapur, District Aurangabad                 Plaintiff

       versus

Ashok s/o Manjahari Kadam,
Age 46 years, occup. Agril.,
R/o Undirwadi, Taluka Shrirampur,                 .. Respondent/
Taluka Shrirampur, Dist. Aurangabad                  Original Defendant

         ----

Mr. Ajit D. Kasliwal, Advocate for petitioner Mr. N. S. Shah, Advocate h/f Mr. S. V. Natu, Advocate for respondent

CORAM : SUNIL P. DESHMUKH , J

DATE : 27-11-2017

ORAL JUDGMENT :

1. Rule. Rule made returnable forthwith. Heard learned counsel

for the parties finally by consent.

2. Learned counsel for the petitioner at the outset has submitted

that the order of injunction passed in a non substring counterclaim

wherein the court of first instance rejected the request of defendant

in the suit and after counter-claim had not been subsisting, an

application for order for temporary injunction has been entertained

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by the appellate court and injunction is purported to have been

granted. This court had at the very initial stage stayed operation of

injunction so granted by the appellate court. He, therefore, submits

that in stead of getting into merits of the case which may not be

expedient now and may consume precious time, since the situation

has been prevailing for over three years, the suit be directed to be

disposed of within a limited duration as the suit has not been making

any progress any progress after institution of writ petition.

3. Mr. N. S. Shah, learned counsel holding for Mr. S. V. Natu

appearing on behalf of the respondent, however, has a different

perspective and contends that it may not be an issue whether in a

subsisting or non subsisting counterclaim injunction could not be

granted against the plaintiff. He submits that in a deserving case

with reference to section 94 of the Code of Civil Procedure, 1908 and

with inherent powers, the court is adequately equipped to grant

injunction against the plaintiff.

4. He quit emphatically refers to decision of this court in the case

of Harischandra Narayan Maurya vs. Rajendraprasad Dargahi Varma, reported

in 1997 (1) Bom.C.R. 28 in which aforesaid proposition has been

expositioned.

5. He further refers to decision of this court in the case of

Nanasaheb vs. Dattu, reported in AIR 1992 Bombay 24 : 1991 Mh.L.J. 685,

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pointing out that the same has also been discussed in Harischandra

Narayan Maurya's case (supra). He submits, petitioner has no case on

merits and as such impugned order may not be faulted with.

6. Submissions on behalf of respondent though are quite

persuasive, looking at prevailing position that interim relief is

operating against injunction granted for over three years, it would be

expedient that the parties address themselves in the suit for final

decision at an early date.

7. In view of aforesaid, the trial court to go ahead with pending

suit expeditiously and dispose it of preferably within a period of six

months from the date of receipt of writ of this order.

8. interim order as has been operating to continue to operate for

a period of six months from the date of receipt of writ of this court

by the trial court.

9. With aforesaid, writ petition is disposed of. Rule made

accordingly absolute.

SUNIL P. DESHMUKH JUDGE

pnd