Partly allowed

Somnath Vithoba Dabade v. Ganesh Popat Patil and Ors.

Bombay HC27 Aug 2012WP/6441/2012

Case brief

AI extract

What is this about?

A writ petition challenging the granting of interim injunction by courts below. While confirming the injunction order to protect possession, the High Court set aside the directive withdrawing court-deposited funds, directing the District Judge to reconsider that aspect with reasons.

What did the court decide?

Impugned order on injunction confirmed; order on withdrawal of deposit set aside and remanded to District Judge to decide on merits with reasons.

Somnath Vithoba Dabade Vs Ganesh Popat Patil… — Civil Procedure and Limitation | Bombay HC (2012)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION

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WRIT PETITION NO.6441 OF 2012

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Somnath Vithoba Dabade ... Petitioner Vs. Ganesh Popat Patil & Ors. … Respondents

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Mr. A.A.Joshi for petitioner. Mr.A.B.Avhad for Respondent No.1.

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CORAM : N.M. JAMDAR J. DATE : 27 August, 2012.

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P.C.:

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Heard learned counsel for petitioner.

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This petition challenges the order passed by the District Judge, Pandharpur confirming the order passed by the Civil Judge, Junior Division, Pandharpur whereby the application for interim injunction filed by the Respondents was granted.

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As far as the finding regarding possession of the Respondents over the suit property is concerned, both the Courts below have concurrently held that since the Respondents are in possession of the suit property, their possession needs to be protected till disposal of the suit. Learned counsel for the petitioner is unable to show any perversity in the said finding. There is no reason to disturb this concurrent finding of fact. Order as regards to temporary injunction is confirmed.

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Learned counsel for the petitioner further submits that the petitioner had filed R.C.S.No.6 of 2010 prior to the present suit wherein the

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petitioner had contended that suit land was not sold to the predecessor in title of the respondent one Balu Waghmode but the suit land was given to said Balu Waghmode only by way of a security. This suit filed by the petitioner i.e.R.C.S.No.6 of 2010 is still pending. In the said suit, the Respondents are also party defendants. Learned counsel for petitioner submits that therefore since the title of the Respondent No.1 is still in question, the amount of Rs.70,280/- which is deposited in the Court by sale of sugarcane ought not to have been given to the Respondent No.1. The learned counsel for Respondent No.1 submits that the amount is to be withdrawn only after furnishing security hence there is no prejudice to the petitioner.

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After hearing the learned counsel, I find that separate applications were made by the Respondent below Exhibit 27 and the petitioner below Exhibit 31 in the appeal for withdrawal of this amount. By the impugned order, the learned District Judge, Pandharpur allowed the application filed by the Respondents. However there are no reasons given by the learned District Judge while allowing the application filed by the Respondents.

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Accordingly, the impugned order as far as grant of injunction is concerned, is confirmed. The direction given in clause 2 of the order passed by the District Judge on 17 April 2012 is set aside. Learned District Judge will decide the applications filed by the petitioner below Exhibit 31 and the Respondent below Exhibit 27 afresh on their own merits by giving reasons. This order shall not be construed as having commented on the merits of the rival claims. Petition stands disposed of accordingly.

Somnath Vithoba Dabade v. Ganesh Popat Patil and Ors.

Case brief

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Somnath Vithoba Dabade v. Ganesh Popat Patil and Ors.

Case brief

What is this about?

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