Jagdish Prabhakar Chiddarwar And ... vs Gajanan Murlidhar Padmawar
2021 Latest Caselaw 772 Bom

Judgment                             1                        WP2971.20.odt




           IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                     NAGPUR BENCH, NAGPUR.


                   WRIT PETITION NO. 2971 OF 2020


PETITIONERS      : 1] Jagdish Prabhakar Chiddarwar
                      Aged 43 year, Occu. Agriculturist

                    2] Sau. Pradnya W/o Jagdish Chiddarwar,
                       Aged about 32 years, Occu. Household

                       Both R/o Sant Dnyaneshwar Nagar, Pusad,
                       Tq. Pusad, Dist. Yavatmal.


                             // VERSUS //


RESPONDENT       : Gajanan Murlidhar Padmawar,
                   Aged 50 years, Occu. Agriculture,
                   R/o Yerawar Layout, Behind Narjeevan Convent,
                   Pusad, Tq. Pusad, Dist. Yavatmal.
___________________________________________________________________

    Shri P. S. Chauhan, Advocate for the petitioners.
    Shri V. R. Thote, Advocate for the respondent sole
___________________________________________________________________


                   CORAM : V. M. DESHPANDE, J.

DATED : JANUARY 13, 2021

ORAL JUDGMENT

1. RULE. Rule is made returnable forthwith. Heard finally by

consent of the learned counsel for the parties.

Judgment 2 WP2971.20.odt

2. Shri P.S. Chauhan, learned counsel is representing the

petitioners, who are the original defendants and Shri V.R. Thote,

learned counsel is representing the respondent, who is the original

plaintiff.

3. This writ petition is filed seeking direction to set aside the

order passed by the learned Joint Civil Judge, Junior Division, Pusad

on 29.10.2020 (Annexure-M), below application (Exh.79) in Regular

Civil Suit No. 113 of 2019, thereby granting police aid to the

respondent. Subsequently, an application (Exh.83) was moved by the

respondent/original plaintiff stating therein that though, the order was

passed in favour of the plaintiff to give police aid, when he went in the

police station, it was informed that unless and until there is permission

from the Superintendent of Police, police aid cannot be granted.

Therefore, application (Exh.83) was moved for extension of 15 days.

On the said application, following order was passed which is under

challenge :-

"No say filed. Considering reasons mentioned in application, time is extended till 20.11.2020."

Judgment 3 WP2971.20.odt

4. The respondent/plaintiff filed a suit for permanent

injunction, claiming injunction that the defendants i.e. present

petitioners be restrained from disturbing the possession of the plaintiff.

In the said suit, an application for temporary injunction under Order 39

Rules 1 and 2 was filed by the plaintiff. The said application is at

Exh.5. Defendant no.1 in the said suit also filed an application for

temporary injunction. The said application is at Exh.35. The learned

Joint Civil Judge, Junior Division, Pusad by common order dated

17.01.2020, allowed the application (Exh.5) filed by the respondent/

plaintiff and dismissed the application (Exh.35) filed by the defendant

no.1.

5. Before this Court, at bar a statement is made by the

learned counsel for the petitioners that the petitioners have challenged

the order granting temporary injunction in favour of the respondent/

plaintiff before the Appellate Court. The appeal is registered as Misc.

Civil Appeal No. 06 of 2020 and the said appeal is pending on the file

of the learned Appellate Court.

6. Be that as it may. Mr. Thote, learned counsel for the

respondent invited my attention to the affidavit filed on behalf of Judgment 4 WP2971.20.odt

respondent - Gajanan Murlidhar Padmawar that in pursuance to the

order of granting police aid, Rs.29,944/- with Police Station, Pusad and

the police aid was given and the order was complied and therefore, this

writ petition has rendered infructuous.

7. Shri Chauhan, learned counsel for the petitioners

submitted that he will file the counter affidavit.

8. In view of the aforesaid, I do not propose to keep this

matter pending.

9. It is an admitted position that the appeal filed by the

petitioners challenging the order of injunction in favour of the

respondent is still pending before the Appellate Court. The Appellate

Court has to decide the said appeal independently after considering the

pleadings and various documents, which are placed on record to test

correctness of the order passed by the learned trial Court granting

injunction in favour of the respondent/plaintiff. Merely because police

aid was granted in favour of the respondent, in my view, the Appellate

Court shall not consider the same that the plaintiff is in possession of Judgment 5 WP2971.20.odt

the land especially when defendant no.1 had also filed an application

(Exh.35) claiming that he is in possession.

10. In that view of the matter, I dispose of this writ petition

with an observation that the Appellate Court shall decide Appeal No.

06 of 2020 independently strictly in accordance with law and merely

because police aid was granted in favour of the respondent/plaintiff,

that itself cannot be a ground to record a finding that the plaintiff is in

possession of the suit property.

11. It is not disputed before this Court that the appeal is now

kept for final hearing. Since, both the parties are claiming that they are

in possession of the disputed land, it will be proper on the part of

learned Appellate Court to decide the appeal expeditiously as possible

preferably within a period of three months from the date of receipt of

this order.

Rule accordingly. No order as to costs.

                                              JUDGE
Diwale



                                                        Digitally signed
                                          Parag         by Parag Diwale
                                                        Date:
                                          Diwale        2021.01.15
                                                        16:38:28 +0530