Balkrishna Laxman Khot-Aatpadkar v. Vijaya Mahadeo Khot-Aatpadkar and Ors.

Bombay HC14 Jun 2007WP/6027/2006

Case brief

AI extract

What is this about?

In this writ petition under Article 226/227 regarding an interim restraint order during partition proceedings, the High Court of Bombay, Bombay Bench held that disturbing the lower court's order was unjust. The court expedited the underlying partition suit and disposed of the writ petition.

What did the court decide?

The writ petition was disposed of by expediting the trial court suit and maintaining the interim order.

Balkrishna Laxman Khot-Aatpadkar Vs Vijaya Mahadeo Khot-Aatpadkar… — Partition | Bombay HC (2007)

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 IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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 CIVIL APPELLATE JURISDICTION

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 WRIT PETITION NO.6027 OF 2006

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 Balkrishna Laxman Khot .. Petitioner

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 Versus

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 Vijay Mahadev Khot- Aatpadkar

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 and Ors. .. Respondents

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 Mr.A.M.Kulkarni for petitioner

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 Mr.A.J.Chougule for respondents.

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 CORAM : SWATANTER KUMAR, C.J. &

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 S.C.DHARMADHIKARI, J.

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 DATE : 14th June 2007.

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 P.C.

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 . The order under challenge is passed

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 during the pendency of the Civil Miscellaneous
 Appeal No.21 of 2005.

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 2. During the pendency of this appeal, two
 applications for interlocutory orders came to be
 filed. These applications were numbered as
 Exh.39 and 40.

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 3. It is not disputed before me by Counsel
 for both parties that upon Exh.32, interim
 injunction was granted by the lower appellate
 court under Order 39 Rules 1 and 2 against
 respondents to the appeal, who are petitioners
 before me, by order dated 20th October 2005. The
 apprehension of the appellant before the Court
 below is that despite this restraint/injunction
 order, the petitioners - respondents to the

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 appeal are obstructing harvesting of crops. They
 are not allowing original appellant to reside in
 the house and threatening her. It is in such
 circumstances, she prayed for appropriate interim

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 orders.

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 4. Application, Exh.40 was presented by the
 respondent appellant pointing out that during
 pendency of the appeal, on 2nd February 2005
 respondent Nos. 1 to 4 to the appeal,
 partitioned the suit property amongst themselves
 and mutation entry No.2105 came to be effected.
 She prayed that after mutation entry has been
 effected the apprehension is that respondents
 would alienate and transfer the suit property and
 lands and thereupon, Regular Civil Suit No.52 of
 2004 for partition and separate possession
 preferred by the appellant would be rendered
 infructuous.

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 5. Taking up these applications (Exh.39 and
 40) and hearing them together, the lower
 appellate court passed the following order:-

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 "1. Application (Exh.39) is hereby

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 allowed with costs;

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 2. Police Station Kavathe Mahankal

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 is hereby ordered and directed to give
 protection to the appellant in order to
 protect her peaceful possession over the
 suit properties and for cultivation of
 the suit properties;

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 3. Appellant is hereby ordered and
 directed to deposit the necessary charges
 in police station, Kavathe Mahankal to
 that effect;

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 4. Application (Exh.40) is hereby

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 allowed with costs;

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 5. Respondent No.2 is hereby
 restrained from transferring, alienating,
 creating charge etc., over the suit
 properties till the decision of this

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 miscellaneous civil appeal."

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 6. Aggrieved by the order passed on 12th
 April 2006 as above present petition under
 Article 227 has been preferred.

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 7. Miscellaneous Civil Appeal against
 interlocutory orders passed by the Trial Court is
 still pending for hearing and final disposal. The
 impugned order has been passed on 12th April 2006
 and more than a year has lapsed when parties are
 still at interlocutory stage. These state of
 affairs would assist neither of them. More so,
 when the suit is for partition and separate
 possession. It appears that parties to the suit
 are family members.

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 8. With the assistance of learned Counsel
 for both sides, I have perused the petition and
 annexures thereto including the impugned order.
 Although, the lower appellate Court was deciding

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 applications (Exh.39 and 40) which were filed
 during the pendency of Miscellaneous Civil Appeal
 No.21 of 2005, to me, it appears that while
 deciding them, it has made prima facie
 observations. It has gone into the documents
 which were produced at this stage. These
 findings which are tentative and prima facie at
 paras 5 and 6 would clearly go to show that some
 interlocutory orders are necessary to be passed
 during the pendency of Regular Civil Suit No.52
 of 2004 for partition and separate possession.
 Considering the controversy involved therein and
 the reliefs claimed so also the parties being
 family members and the appellant being lady, the
 Court below thought it fit to pass a restraint
 order. Such restraint order has admittedly, been
 in force from 12th April 2006. In my view,
 disturbing the said order at this stage would not
 be fair and just and proper. More so, when I am
 of the view that interest of both sides would be
 sub-served if the hearing of Regular Civil Suit

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 No.52 of 2004 is expedited. Thus without
 expressing any opinion on the rival contentions
 and keeping them open for being urged at the
 hearing of the suit but being satisfied that
 prima facie case is made out by the appellant
 original plaintiff for the relief that has been
 granted by the lower appellate court, I pass the
 following order:-

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 a) Miscellaneous Civil Appeal No.21
 of 2005 stands disposed of in terms of
 the order dated 12th April 2006;

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 b) Order dated 12th April 2006 which
 is passed by the lower appellate court on
 Exh.39 and 40 shall operate as
 interlocutory order during the pendency
 of Civil Suit No.52 of 2004;

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 c) Regular Civil Suit No.52 of 2004
 is expedited and the trial court shall

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 endeavour and dispose of the same by 31st
 March 2008. All contentions are
 expressly kept open.

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 d) Petition disposed of accordingly.
 Needless to state that the trial court
 shall decide the suit uninfluenced by the
 impugned order and any observations
 therein so also the orders passed by this
 Court.

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 (S.C.Dharmadhikari, J)

Balkrishna Laxman Khot-Aatpadkar v. Vijaya Mahadeo Khot-Aatpadkar and Ors.

Case brief

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Balkrishna Laxman Khot-Aatpadkar v. Vijaya Mahadeo Khot-Aatpadkar and Ors.

Case brief

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