02 Dec 2020

The High Court cannot sit in appeal while exercising the writ jurisdiction against the careful exercise of inherent powers by a Civil Judge - Bombay High Court

Case : Ramesh and Ors. v. Anil Writ Petition No. 7799 of 2020

Court : Bombay High Court

Bench : Justice Mangesh S. Patil

Decided on : 02 Dec 2020

Relevant Statutes

Article 226 of the Constitution of India

Order XXXIX (Rule 1 and 2) and Section 151 of the Code of Civil Procedure, 1908

Brief Facts and Procedural History

1. The respondent (original plaintiff) filed a suit for perpetual injunction, firstly restraining the petitioners (defendants) from obstructing his possession in the suit property and secondly restraining them from destroying a south-north road (way being used by him for going to the suit property).

2. He preferred an application for a temporary injunction under Order XXXIX, Rule 1 and 2 of the Code of Civil Procedure, 1908 as the main relief. The Civil Judge by the order dated 14.01.2020 allowed the application and granted a temporary injunction in terms of both the main reliefs.

3. On 20.01.2020, the respondent preferred another application under Section 151 of the Code of Civil Procedure, 1908 seeking police aid to enable him to enforce the order of temporary injunction. The Civil Judge allowed this application. The petitioners challenged this order through a writ petition.

The Issue of the Case

Whether the order of the Civil Judge enabling the respondent to enforce the order of temporary injunction sustainable?

The Observations of the Court

1. Since the petitioners invoked the writ jurisdiction of the High Court, the scope of the scrutiny was held to be limited.

2. The video recordings produced by both parties reveal that the petitioners had obstructed the respondent in breach of the order of temporary injunction. Thus, the Court could not sit in appeal while exercising the writ jurisdiction.

3. The order of temporary injunction though has been challenged before the appellate Court its operation has not stayed.

4. If the learned Civil Judge reasonably arrived at a conclusion that even during a short span of 8 to 10 days the petitioners had obstructed the respondent in breach of the temporary injunction, a period within which the relief of police protection was sought is inconsequential.

5. In view of Nirabai J. Patil Vs. Narayan D. Patil, 2004 (1) Mh.L.J. 1058 the powers under Section 151 of the Code of Civil Procedure can be invoked in case of grave emergency. The Civil Judge, in the present case, considered the prevailing circumstances as serious enough to enable him to exercise inherent powers under Section 151 of Code of Civil Procedure, 1908. Consequently, the High Court refused to intervene.

The Decision Held by the Court

1. The High court dismissed the Writ petition and confirmed the subsequent order of the Civil Judge staying the execution and operation of the impugned order and allowing the same arrangement to be continued for two weeks to enable the petitioners to approach the Supreme Court.

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