Sanjay Vasant Peshave vs Dilip Lakhichand Khivsara And ...
2021 Latest Caselaw 11679 Bom

               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                          BENCH AT AURANGABAD


                           SECOND APPEAL NO.206 OF 2020


                                   SANJAY VASANT PESHAVE
                                          VERSUS
                   DILIP LAKHICHAND KHIVSARA AND OTHERS
                                            ...
                      Mr. S.P. Brahme, Advocate for the appellant
                                            ...

                                       CORAM :     SMT. VIBHA KANKANWADI, J.
                                       DATE :      24th AUGUST, 2021


ORDER :

1 Heard learned Advocate Mr. S.P. Brahme for the appellant.

2 Present appellant is the original plaintiff No.1, who had filed

Regular Civil Suit No.154/2010 before learned 7 th Joint Civil Judge Junior

Division, Dhule. It was dismissed on 31.08.2015. Present plaintiff filed

Regular Civil Appeal No.117/2015 and it was heard by learned District

Judge-1, Dhule and dismissed on 10.09.2018.

3 It is not in dispute that the present appellant and co-plaintiffs

had earlier filed Regular Civil Suit No.313/1993. It was dismissed. It was in

respect of restraining the defendants from damage in the common wall,

2 SA_206_2020

between the house property of the plaintiffs and house property of the

defendant. Plaintiffs had challenged that decree for dismissal of their suit

before learned Appellate Court by filing Regular Civil Appeal No.48/1995.

The said suit came to be decree on 13.09.2001. The defendants were

restrained from increasing the height of the common wall, doing any such

acts in respect of the common wall, which would be detrimental to the

existence of the wall. In order to get that decree executed the appellant and

the original plaintiffs have filed Regular Darkhast No.78/2007. However, in

2009 the plaintiffs found that waste water was coming from the common

wall of the houses of both sides and it has created danger to the existence of

the common wall itself. It was also known to the plaintiff that defendants

have closed the waste water outlet and WC pipe. Inspite of giving chances

and time to obey the decree and remove the present obstruction, the

defendants had not taken any steps, and therefore, suit was filed.

4 By written statement the defendants denied everything. Both

the Courts have held that the defendants are illegally discharged the drainage

water as well as WC pipes from the common wall. However, the plaintiff was

held to be not entitled to claim the injunction. It was submitted on behalf of

the appellant that the acts done by the defendants are causing damage to the

common wall, and therefore, both the Courts below ought to have taken into

3 SA_206_2020

consideration the evidence that has been led, so also, the fact that the earlier

decree has been confirmed in favour of the plaintiffs. Merely because the

darkhast i.e. execution petition is pending and misinterpreting the provisions

of Order XXI Rule 32 of the Code of Civil Procedure, 1908 the suit has been

dismissed and the Appellate Court has dismissed the appeal.

5 At the outset, it is to be noted that though the earlier Judgment

and Decree was prevailing and the plaintiffs had come with the case that the

said decree has been violated and already an execution petition is pending,

then separate suit is not maintainable.

6 The substantial question of law that has been raised is in respect

of, whether the suit was maintainable in the form when already the decree is

in their favour, which was passed in the earlier instituted suit ? Application

of Order XXI Rule 32 of the Code of Civil Procedure is also required to be

considered, in view of the fact that the plaintiffs had given fresh cause of

action. The acts alleged would be of continuing in nature and, therefore,

without taking out any further plea, whether it can be said that a case was

made out to grant injunction ? Though there is concurrent finding, it can be

seen that, though the execution petition was still pending before the

concerned executing Court; yet, whether the fresh cause of action would

debar institution of a suit ?

                                            4                                      SA_206_2020



7                Second Appeal is, therefore, admitted.           Following are the

substantial questions of law.


          1        Whether both the Courts below erred in interpreting the

relief or action under Order XXI Rule 32 of the Code of Civil Procedure, 1908 ?

          2        Whether the suit was maintainable ?

          3        Whether both the Courts have exercised their discretion in
          refusing to grant relief of injunction ?




8                Issue notice to the respondent Nos.1 and 2, returnable on

14.10.2021.


9                Call Record and Proceedings.




                                                ( Smt. Vibha Kankanwadi, J. )



agd