Disposed

Savitabai Sanjay Chhajed v. Sandeep Bhausaheb Pathak and Ors.

Bombay HC16 Jan 2013WP/404/2013

Case brief

AI extract

What is this about?

The High Court allowed the writ petition though it faulted the lower court for passing an ex-parte order without hearing the caveator. The Court directed the lower court to dispose of the Misc. Civil Appeal within two months instead of setting aside the order.

What did the court decide?

Direction to decide Misc. Civil Appeal No. 36 of 2012 expeditiously within two months.

Savitabai Sanjay Chhajed Vs Sandeep Bhausaheb… — Civil Procedure and Limitation | Bombay HC (2013)

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1 W.P. 404.2013

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FARAD CONTINUATION SHEET No.

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD

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WRIT PETITION NO. 404 OF 2013

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Sow. Savitabai W/o Sanjay Chhajed V/s Sandeep Bhausaheb Pathak & Ors.

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Office Notes,Office Court's or Judge's orders Memoranda of Coram,appearances, ................................ Court's orders or CORAM : S.V.GANGAPURWALA, J. directions and Registrar's orders DATE : 16/01/2013.

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Mr. R.A.Tambe, Advocate for the Petitioner.

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PER COURT :

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The Petitioner assails the order passed below Exh. 5 in Misc. Civil Appeal No. 36 of 2012.

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Mr. Tambe, the learned counsel for the petitioner submits that after the temporary injunction application was rejected by the trial Court, the present petitioner filed caveat before the District Court. The petitioner received notice from the office of the District Court that the hearing in the Misc. Civil Appeal is kept on 02/11/2012. According to the learned counsel, the said notice is shown to have been issued by the office on 20/09/2012.

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The learned counsel submits that already the Court had

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2 W.P. 404.2013

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passed an order on 13/09/2012 granting injunction. According to the learned counsel, when the petitioner had filed a caveat, the District Court ought to have heard the petitioner and could not have passed an order granting injunction till the disposal of the Appeal. The learned counsel further submits that whenever an exparte injunction is granted, the same has to be ad-interim injunction. But, in the present case, the District Court without hearing the present petitioner, though she had filed caveat, had passed restraint order till the disposal of the Appeal. According to the learned counsel, such an order can not be sustained and deserves to be set aside.

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With the assistance of the learned counsel, I have gone through the order and the proceedings filed in the present Writ Petition.

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It appears that the petitioner had filed caveat on or about 18/08/2012. The petitioner was issued with the notice of the office of the District Court intimating the petitioner that the Appeal has been filed by the present respondent bearing Misc. Civil Appeal No. 36 of 2012 and the hearing is scheduled on 02/11/2012. However, it appears that the Court passed an order restraining the present petitioner from alienating or creating third party interest over the suit property till the disposal of the Appeal. When the petitioner had filed a caveat, the District Court

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3 W.P. 404.2013

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ought to have heard the caveator before passing the order. It is a normal procedure. This can be deviated only if a party shows exceptional exigency and even if the Court ventures to pass an exparte order, it is elementary principle that an ex-parte order is always ad-interim one and could not have been passed till the disposal of the Appeal. This elementary principle has been lost sight by the District Court.

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The provisions of Order XXXIX of the Code of Civil Procedure mandates that if an ex-party injunction is granted, the said application has to be heard within the period of thirty (30) days. This fact has also not been adhered to by the District Judge.

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Be that as it may. The order passed by the District Court is restraining the petitioner from alienating or creating third party interest and the said order is in force since 13/09/2012. In light of the fact that the order is passed before four (4) months back and the Appeal is Misc. Civil Appeal which can be disposed of on merits expeditiously, I am not setting aside the order.

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Interest of justice would be sub-served if the District Judge is directed to decide the Misc. Civil Appeal expeditiously.

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The District Judge where the Misc. Civil Appeal No. 36 of 2012 is pending, shall decide the said Appeal expeditiously and in

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4 W.P. 404.2013 any circumstance within two (2) months from today.

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The Writ Petition is accordingly disposed of. No costs.

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[ S.V.GANGAPURWALA, J. ]

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KNP/W.P. 404.2013

Savitabai Sanjay Chhajed v. Sandeep Bhausaheb Pathak and Ors.

Case brief

What is this about?

What did the court decide?

Savitabai Sanjay Chhajed v. Sandeep Bhausaheb Pathak and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

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