Mr. Damaji Yeswant Vaidya And Ors vs State Of Maharashtra Through ...
2021 Latest Caselaw 1891 Bom

                                                                  42.1325.20-iaf.odt


                             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
Basavraj                         CIVIL APPELLATE SIDE JURISDICTION
G. Patil                         INTERIM APPLICATION NO.1325/2020
Digitally signed by
Basavraj G. Patil
                                                 IN
Date: 2021.01.30                      FIRST APPEAL NO.112/2015
15:03:30 +0530




                      Damaji Yeshwant Vaidya & Ors.             ..... Applicants

                             Vs.

                      State of Maharashtra & Ors.               ..... Respondents


                      Ms. Priyadarshini A. Birje for the Applicants
                      Mr. Deepak Dhane I/b. I. M. Koparkar for Respondent No.2.


                                              CORAM:      K.K.TATED &
                                                          RIYAZ I. CHAGLA, JJ.

                                              DATED :     JANUARY 28, 2021
                      P.C.

                      1      Heard. By this Interim Application, the Applicant is

seeking stay to the execution and operation of the judgment and decree dated 30.08.2014 passed in Special Civil Suit No.142/2019 (Old R.C.S.No.212/2016). The learned counsel for the Applicant also seeks an order of injunction restraining Respondent No.2, their agents or any one acting on their behalf or any party interested from dispossessing the Applicants of the subject property i.e. boulders (cement blocks) till hearing and final disposal of the First Appeal.

2 In the present proceedings, the Applicant - Plaintiff had filed the said suit in the court of Civil Judge, Senior Division, Ratnagiri for declaration and perpetual injunction wherein the Trial Court had framed the following issues:

                      Basavraj G. Patil                                                1/3
                                            42.1325.20-iaf.odt


                    ISSUES                      FINDINGS
1     Do Plaintiffs prove that they along In the negative
      with Defendants No.3 to 19 have

acquired right, title, interest and ownership over the suit properties?

2 Whether Plaintiffs are entitled to In the negative relief of declaration as prayed?

3 Whether Plaintiffs are entitled to In the negative the relief of injunction as prayed?

4     What order and decree ?             The suit is
                                          dismissed with
                                          costs.


3      The Trial Court, after considering the evidence on

record dismissed the suit of the Applicant - Plaintiff with costs. Hence, the present First Appeal.

4 The learned counsel for the Applicant submits that in the interest of justice, pending the hearing and final disposal of the First Appeal, this Hon'ble Court be pleased to pass an order of injunction restraining Respondent No.2, their agents or any one acting on their behalf or any party interested from dispossessing the Applicants of the subject matter. He submits that they have good chance of success in the matter.

5 On the other hand, the learned counsel for the Respondent - Defendant has vehemently opposed the present application. He submits that the Applicant - Plaintiff had filed another Civil Application No.4235/2014 for the same relief, wherein this court had passed order dated 19.09.2017 and directed to hear the said application along with the First Appeal. He submits that in Civil

Basavraj G. Patil 2/3 42.1325.20-iaf.odt

Application No.4235/2014, the Applicant has made the following prayers:

"(a) Pending the hearing and final disposal of the above appeal the effect and operation of the impugned judgment and order dated 30.08.2014 passed in Special Civil Suit No.142/2009 may kindly be stayed.

(b) Pending the hearing and final disposal of the above appeal, an order may be passed restraining the Respondents from disturbing the possession of the Applicants and restraining them from enterting into any kind of sale or other transaction with third party;

(c) Interim and/or ad-interim relief in terms of prayer clause 9a) and (b) above be granted.

       (d)     ............"

6      The learned counsel for the Respondent submits that

in the interest of justice, this Hon'ble Court be pleased to dismiss the application with costs.

7 We heard both the sides. When we noticed that, the Applicant had filed Civil Application No.4235/2014 and when we showed our inclination to dismiss the present application with costs, the learned counsel for the Applicant seeks permission to withdraw the Interim Application, unconditionally. To that effect, she has given in writing. Same is taken on record and marked "X" for identification.

8 The Interim Application stands disposed of as withdrawn. No order as to costs.

(RIYAZ I. CHAGLA, J.)                     (K.K.TATED, J.)

Basavraj G. Patil                                               3/3