High Court

Legal Reasoning

IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADWRIT PETITION NO. 10179 OF 2023SAMARTH LAND AND DEVELOPERS THROUGH ITS PROPRIETORSSANDESH WALMIK YEOLEVERSUSGHANSHAM RAMCHANDRA PARDESHI AND OTHERSMr. R. N. Dhakane h/f Mr. S. S. Thombre, Advocate for the petitioner Mr. D. P. Palodkar, Advocate for respondent Nos. 2 to 7.CORAM: R. M. JOSHI, J.DATE: 27th JUNE, 2024PER COURT :-1.By consent of both sides, heard finally at the stage ofadmission.2.The original plaintiff in RCS No. 153/2021 seeks to takesexception to the order passed below Exhibit 39 rejecting application filedby the plaintiff for police protection to construct the compound wall tothe suit property.3.Before taking into consideration the contentions of learnedcounsel for both sides it is relevant to take note of certain importantfacts since they are undisputed. Plaintiff filed suit for injunction againstthe defendants restraining him from interfering into the possession of the931.wp10179.23.odt1 of 7 plaintiff over the suit property. The defendants opposed the saidcontention and raised plea of title in the suit property by way of adversepossession. Both plaintiff as well as defendants filed application forinjunction against each other. The application for injunction filed by theplaintiff came to be allowed by order dated 27/07/2022 whereas theapplication filed by the defendants was rejected. The case of thedefendants at the said prima facie stage having title of the suit propertyon the basis of adverse possession was not accepted by the Court. Theseorders have attained finality.4.After passing of the order below Exhibit 6 in the suit, plaintiffapplied to the Corporation for erection of compound wall to the suitproperty. Said authority permitted plaintiff to erect the wall. This washowever obstructed by the defendants, hence application (Exhibit 39)came to be filed. 5.The impugned order indicates that the said application isrejected with direction to the parties to maintain status quo till finaldecision. It is also observed that plaintiff is seeking police help not forimplementing temporary injunction order, not for protecting hispossession and maintenance of status quo but wants to construct thecompound wall to protect his property which may change the nature of931.wp10179.23.odt2 of 7 suit property.6.In the light of the aforestated facts it is the contention of theplaintiff-petitioner that the learned Trial Court has committed error in notconsidering the application filed for the police protection. It is hissubmission that it is within the right of the Civil Court to pass such orderin appropriate cases. It is sought to be argued that it was not open forthe Trial Court to pass any fresh order directing maintenance of statusquo, which was not passed while deciding Exhibit 6. He drew attention ofthe Court to the injunction granted against the defendants which isreproduced below:“ORDER1. The application (Exh.6) is allowed with costs.2. The defendants, their agents, subordinates or anyperson acting under them are hereby restrained frominterfering the plaintiffs’ peaceful possession over the suitproperty/plot more particularly described in para No.1 ofthe plaint.”.It is submitted that the plaintiff having obtained permissionfrom the Municipal Council to construct the compound wall, his right toconstruct compound wall includes his right to a peaceful possession overthe suit property.7.Learned counsel for the respondents/defendants opposed the931.wp10179.23.odt3 of 7 tenability of the petition on the ground that petitioner has suppressedmaterial fact that is application filed under Order 39 Rule 1 and 2 of theCPC before the concerned Court alleging the breach of injunction orderby the defendants. It is his submission that on this count alone, petitiondeserves to be dismissed. On the merit of case it is sought to be arguedthat the learned Trial Court in paragraph 9 of the order has held that theplaintiff has failed to prove any breach of injunction as alleged. It is alsosought to be canvassed that though the impugned order is not happilyworded, however, the per court of the order should be construed as theinjunction order was granted in order to maintain the status quo of thesuit property. Reference is made to the provisions of Order 39 Rule 1 and2 in order to submit that the circumstances and for the purpose forwhich the injunction can be granted, the scope of interim relief grantedcannot be extended beyond the same. It is submitted that though thereis power of the Civil Court to direct the police help/assistance, such ordercannot be passed in routine manner, but such power can be exercisedonly in case of grave urgency. To support his submission reliance isplaced on the judgment of this Court in case of Nirabai J. Patil Vs.Narayan D. Patil, 1058 (2004) Mh.L.J. Reference is also made to thejudgment of this Court in case of C.S.I. Church Devanankuruchi rep. Byits Power of Attorney Rt. Rev. Dr. M. Dorai Bishiop in Coimbatore No.204, Race Course Road Coimbatore and another Vs. Swaminathan and931.wp10179.23.odt4 of 7 another, 2006-2L.W. 151. It is argued that in spite of granting of specificinjunction, the Madras High Court has upheld the order of refusal ofgrant of police protection but instead expedited the proceeding beforeTrial Court. He further submits that the stage of the suit has reached tothe evidence and suit is likely to be concluded and merits in short time. 8.The contention of the learned counsel for the petitioner withregard to the alleged suppression of the fact while filing the petition isnot considered in the peculiarity of the circumstances in which the orderis passed by the Trial Court. This Court would not have interfered in theimpugned order considering the fact that the suit was at the final stageof hearing and it would be concluded in short time. However, this Courtfinds it absolutely essential to cause interference therein having regardto the nature of order. As recorded herein above there was interiminjunction granted against defendants restraining them from interferinginto the peaceful possession of the plaintiff over the suit property. Primafacie there is finding recorded by the Court which has attained finality tothe effect that plaintiff is in possession of the suit property and thatdefendant has no right to obstruct the said possession in any manner. Inspite of such specific finding recorded by the Court below and confirmedin the Writ Petition before this Court, the learned Trial Court hasventured to observe that it is a case wherein status quo is directed. In931.wp10179.23.odt5 of 7 Paragraph 10 in the initial part of this paragraph it is observed that thepurpose of granting such order was to direct the parties to maintainstatus quo. However, Court further proceeds to issue fresh direction tothe parties to maintain status quo. This is wholly impermissible. TheCourt was not seized with application for grant or rejection of injunction.The only issue before the Court as to whether the case being made outfor the grant of police assistance or not. In such circumstances, orderpassed by the Trial Court of directing parties to maintain status quocannot be allowed to remain on record.9.Though learned counsel for the respondents is right to makesubmission that such power can be exercised in routine manner and isalways subject to grave urgency, learned Trial Court seems to have noteven bothered to record any finding thereon in spite of such submissionbeing made before it. It is altogether different issue if the learned TrialCourt was of the view that this is not the matter of grave urgency inorder to invoke the extraordinary powers under Section 151 of CPC. TheTrial Court, however, rejects application as if the defendants have primafacie some right in the property. Such indirect findings are totallycontrary to the findings recorded by the Trial Court rejecting thecontention of the defendants in this regard. Having considered the orderfrom any angle, error appears on face of it, whole appreciating facts and931.wp10179.23.odt6 of 7 law on the subject.10.This Court, however, is not inclined to allow application(Exhibit 39) at this stage because at the first instance Trial Court isrequired to record the finding with the regard to the prima facie breachof the injunction committed if any and the nature of urgency in order toinvoke the extraordinary jurisdiction under Section 151 of CPC to directpolice protection. The Court would also consider whether the obstructioncaused in constructing compound wall is an obstruction to peacefulpossession/occupation of suit property by plaintiff. Having regard tothese facts, impugned order is set aside. Application (Exhibit 39) isrelegated back the Trial Court for its decision afresh in accordance withlaw.(R. M. JOSHI, J.)ssp931.wp10179.23.odt7 of 7