Bombay High Court
New Modern Education Society Thr ... vs Abdul Quadar Gulam Jilani on 26 August, 2021
Bench: Mangesh S. Patil
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.8984 OF 2021
New Modern Education Society
Registered under the Bombay Public
Trusts Act, having its head office
at : Nasim Cottage, H. No.2-4-109,
Shahganj, Near Shahganj Water Tank
Aurangabad, through its Secretary
Shaikh Imitiyaz Ahmed Gulam Ahmed
Age : 60 years, Occu-Business,
R/o H. No.2-4-109, Shahganj,
Near Shahganj Water Tank
Aurangabad. .. PETITIONER
VERSUS
Abdul Quadar Gulam Jilani
Age 63 years, Occu : Business
R/o Alamgir Colony,Aurangabad .. RESPONDENT
...
Shri S.R.Pande, Advocate for the petitioner
Shri Y.V.Kakade, Advocate for the respondent.
...
CORAM : MANGESH S. PATIL,J.
DATE : 26/08/2021
ORAL JUDGMENT :
Heard. Rule. The Rule is made returnable forthwith. With the
consent of both the sides, the Petition is heard finally at the stage of
admission.
2] In a Suit filed by the petitioner its application for temporary
injunction (Exh.5) was rejected by the learned Civil Judge, Junior
Division. The petitioner challenged that order by preferring an
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Appeal under Sections 104 read with Order XLIII of the Code of Civil
Procedure before the District Court. By the impugned order, the
learned District Judge -III has dismissed the appeal.
3] One need not address the submissions made by the learned
advocates at bar. A bare perusal of the impugned order would reveal
that the learned District Judge-III has abdicated his duty to decide the
appeal. The reasonings given in paragraph nos. 6 and 7 for dismissing
the appeal are as under :
" 6] As this is a Miscellaneous civil
Appeal preferred being aggrieved with the
temporary injunction application rejected by
the learned trial court therefore the scope of
this court is very limited. This court is require
only to see whether the learned trial court has
properly appreciated the documentary
evidence in accordance with the law and
exercise the jurisdiction conferred on him. It
appears from the record that the learned trial
court has rejected the application [Exh.05].
7] According to defendant he has
submitted that he is in possession of the entire
suit property. The title of the defendant as
owner is not in dispute. Here it appears to me
that the trial court has rightly considered the
oral and documentary evidence on record. The
appellant/plaintiff has not satisfactorily
demonstrated before the learned trial court
about existence of their right, title and interest
in the suit property and obstructions at the
hands of defendant. According to me the
learned trial court has considered all the
aspects involved in this case and passed well
reasoned order about the obstruction and
injunction. The trial court came to correct
conclusion. Therefore there is no reason to
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interfere in the impugned order. The appeal is
devoid of merits. Hence, points are answered
accordingly and pass the following order.
ORDER
1] Appeal is hereby dismissed.
2] The order passed by learned trial court
in RCS No.468/20 below Exh-5 is hereby
confirmed."
4] A bare look of the aforementioned paragraphs would
demonstrate that the learned Judge has not taken pains to decide the
appeal. He has simply subscribed to the order under appeal without
even bothering to record reasons, may be precisely, as to what made
him to subscribe to the order under challenge before him. Simply
saying that the decision was correct is no decision in the eye of law.
By no stretch of imagination the impugned order can be said to be a
decision on merit.
5] The Writ Petition is allowed. The impugned order is quashed
and set aside. The matter is remanded to the Court of the District
Judge-III for decision afresh of the Miscellaneous Civil Appeal by
extending opportunity to both the sides to argue. The parties shall
appear before him on 14/09/2021. There shall be no need for the
Court to issue notice to the parties. Needless to state that the learned
Judge would decide the Appeal afresh bearing in mind the
observations in this order.
6] The Rule is made absolute.
(MANGESH S. PATIL,J.)
umg/
