Bombay High Court
Uttam Dhondiram Jadhav vs Shahaji Dhondiram Jadhav on 27 November, 2018
Author: K. K. Tated
Bench: K.K. Tated
948.12461.18-wp.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.12461/2018
Uttam Dhondiram Jadhav ... Petitioner
V/s.
Shahaji Dhondiram Jadhav ... Respondent
Mr. Rahul S. Kadam for the Petitioner
CORAM: K.K. TATED, J.
DATED : NOVEMBER 27, 2018 P.C. :
1 Heard. None for the Respondent though duly served.
2 By this Writ Petition under Article 227 of the Constitution of India, the Petitioner seeks to challenge the order dated 28.09.2018 passed by the learned District Judge, Kolhapur in Misc. Civil Appeal No.92/2018 setting aside the order passed by the Trial Court below Exhibit- 5 restraining the Respondent from disturbing the Petitioner - Plaintiff's peaceful possession over the suit property till decision of the suit.
3 The learned counsel for the Petitioner submits that the Petitioner - Plaintiff has filed Special Civil Suit No. 49/2015 for setting aside the registered gift deed No.544 dated 27.01.2014.
He submits that in that suit the Petitioner Plaintiff has filed Application under Order 39 Rule 1 and 2 of the Code of Civil Basavraj G. Patil 1/3 ::: Uploaded on - 29/11/2018 ::: Downloaded on - 30/12/2018 09:11:42 ::: 948.12461.18-wp.doc Procedure, 1908 for temporary injunction against the Respondent, which was decided by the Civil Judge, Senior Division, Kolhapur by order dated 27.03.2018 after hearing both sides and passed the order restraining the Respondent Defendant from disturbing the Petitioner's possession in respect of the suit property situate at CTS No.2699 having area admeasuring 279.3 sq.mtr. He submits that the Trial Court has, considering the evidence on record, categorically held that the Petitioner is in possession of the suit property. He submits that at the time of passing the impugned order dated 28.09.2018, the appellate court has failed to consider all these facts. He submits that being aggrieved by the order dated 28.09.2018, the Petitioner has made an Application for stay of the said order. On that Application, the appellate court passed the order dated 29.09.2018 directing the parties to maintain status quo in respect of the suit property. He submits that pursuant to the said order, the Petitioner is in possession of the suit property till today.
4 Considering the submissions made by the learned counsel for the Petitioner and the order passed by the Trial Court, following order is passed.
a. Admit.
b. Interim relief in terms of prayer clause (b) which
reads thus:
"(b) Pending the hearing and final disposal of the present petition, this Hon'ble Court be pleased to stay the effect, implementation of the order dated Basavraj G. Patil 2/3 ::: Uploaded on - 29/11/2018 ::: Downloaded on - 30/12/2018 09:11:42 ::: 948.12461.18-wp.doc 13.10.2017 passed by the Hon'ble Court Appellate Cooperative Court, State of Maharashtra in A.O. No.106/2017 and order dated 29.03.2017 passed by the Cooperative Court in Dispute No.CC/II/213 of 2013."
c. Hearing of the petition is expedited.
(K. K. TATED, J.) Basavraj G. Patil 3/3 ::: Uploaded on - 29/11/2018 ::: Downloaded on - 30/12/2018 09:11:42 :::