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2008 DIGILAW 1303 (BOM)

Satish Bhagwandas v. Municipal Council

2008-09-10

D.G.KARNIK

body2008
ORAL JUDGMENT:- 1. Heard. 2. By consent the appeals are heard finally. 3. Following substantial questions of law are framed :- (I) Whether the lower appellate Court was right in hearing the appeals exparte in view of order of status quo passed by this Court on 25.10.2005? (II) Whether the appellants herein were justified in not participating in the proceedings before the lower appellate Court on the ground that there was a stay to the appellate proceedings granted by this Court by an order dated 25.10.2005 passed by this Court in Civil Revision Application no. 16 of 2005 with connected 77 revision applications? 4. All these appeals are directed against a common judgment and order dated 5.3.2008, passed by the learned Principal District Judge, Dhule dismissing Civil Appeal no. 69 of 2004 and 77 other connected appeals. 5. The facts leading to the appeals stated in short are that the appellants claim to be the sufferers of partition between India and Pakistan. They or their ancestors migrated to India after the partition and settled in the city of Dhule. For earning a living they started business by constructing some structures adjoining to a public road commonly known as the Jail road in the city of Dhule. According to the respondent Municipal Council the structures are erected by committing encroachment on the public road and/or the land abutting the public road belonging to it. The respondent initiated a drive for removal of the unauthorised encroachments made on a large scale on various roads in the city of Dhule. When the drive came to the shops of the appellants, each of them filed separate suits for an injunction restraining the respondents from demolishing their structures. By a common judgment and order dated 6.5.1995, the Civil Judge Junior Division, partially decreed all the suits injuncting the respondent municipal council from demolishing the suit shops until some other suitable business premises were made available to them. 6. Initially the respondent municipal council did not file any appeal against the judgment and order of the Civil Judge Junior Division dated 6.5.1995. However, subsequently 78 appeals were filed in the District Court, Dhule, on 12.8.1998 alongwith applications for condonation of delay in filing of the appeals. The applications were allowed on 7.2.2004 and delay in filing of the appeals was condoned. However, subsequently 78 appeals were filed in the District Court, Dhule, on 12.8.1998 alongwith applications for condonation of delay in filing of the appeals. The applications were allowed on 7.2.2004 and delay in filing of the appeals was condoned. The appellants challenged the orders of condonation of delay initially by filing of writ petitions which were subsequently converted into civil revision applications. The civil revision applications were numbered as civil revision application no. 16 of 2005 to civil revision application no. 90 of 2005. The civil revision applications came up before this Court on 25.10.2005 when the Court passed the following order:- " Per Court : . Heard Shri Talekar, learned counsel for the petitioners. 2. The learned counsel states that, the directions given by this Court, vide order dated 16.3.2005, have been complied with. 3. Fix the Civil Revision Applications for admission on 24.11.2005, if the office objections, mentioned in objection form are removed. . In the meantime, the parties are directed to maintain status-quo." 7. While the aforementioned civil revision applications filed by the appellants were pending the appeals filed by the respondent municipal council became ready and were listed for hearing before the District Judge, Dhule. In the appeals, appellants herein made an application before the District Judge, on 29.8.2006 pointing out that by an order dated 25.10.2005 this Court has granted status quo. They urged that the order of status-quo could only mean or interpreted to mean stay to the hearing of the appeals before the District Court. The District Judge however rejected the applications and proceeded with the hearing of the appeals filed by the respondent. The appellants did not participate in the hearing and remained exparte because according to them there was an order of status quo and taking part in the proceedings would have amounted to breach of the order amounting to contempt of the Court. After hearing the appeals exparte, by the impugned judgment and order dated 5.3.2008 the learned District Judge allowed the appeals filed by the respondent Municipal Council against the judgment of the Civil Judge Junior Division granting conditional injunction. That judgment is impugned in this second appeal. 8. Learned counsel for the appellants firstly submitted that by an order dated 25.10.2005 passed in Civil Revision Application no. 16 of 2005 this Court had directed the parties to maintain status quo. That judgment is impugned in this second appeal. 8. Learned counsel for the appellants firstly submitted that by an order dated 25.10.2005 passed in Civil Revision Application no. 16 of 2005 this Court had directed the parties to maintain status quo. Status quo in the facts of the case must be interpreted to mean the status quo relating to the hearing of the appeals before the District Court. Therefore there was an order of status quo and the District Court erred in hearing of the appeals in the teeth of the order of status quo. Though the appellants are not pressing for contempt for breach of the order committed by the District Judge, the order of the District Judge is required to be set aside as it is passed in breach of the order of this Court dated 25.10.2005. In the alternative learned counsel for the appellants submitted that in any event the appellants believed bonafide that the order dated 25.10.2005 of status quo meant stay of the hearing of the appeals before the District Court and the appellants were therefore justified in not participating in the proceedings of the appeals before the District Court. The matter therefore, is required to be remanded back to the District Court for fresh hearing with an opportunity to the appellants to take part in the hearing. This is necessary in order to do justice between the parties. 9. Per contra Mr. Shah learned senior counsel for the respondent submitted that by order dated 25.10.2005 this Court directed that the civil revision applications may be placed for admission on 24.11.2005 and in the meanwhile the parties were directed to maintain status quo. That order of status quo was to remain in force only until 24.11.2005 and expired on that day. There was no order of status quo in force when the appeals were heard by the District Judge. He further submitted that this is the only possible interpretation of order of status quo passed by this Court on 25.10.2005 and therefore it cannot be held that the appellants were under a bonafide impression that there was a stay for the hearing of the proceedings before the District Judge. The appellants deliberately remained absent because they wanted to protract the litigation and gain advantage of the injunction granted by the trial Court. He further submitted that the appeals therefore, deserve to be dismissed. 10. The appellants deliberately remained absent because they wanted to protract the litigation and gain advantage of the injunction granted by the trial Court. He further submitted that the appeals therefore, deserve to be dismissed. 10. Before I proceed further it is necessary to mention some collateral facts. Despite the fact that an order of injunction granted by the trial Court was in force, on 6.5.1995 shops of the appellants were demolished. There is some dispute as to who demolished the shops. According to the appellants the shops were demolished by the respondent Municipal Council in breach of the order of injunction. However, according to the respondent they were demolished by the Collector and/or by someone else and not by the respondent. On account of the illegal demolition in breach of the order of injunction, the appellants herein filed writ petitions, bearing no. 4616 of 2005 at Bombay Bench (Re-numbered as writ petition no. 2307 of 1996 at Aurangabad Bench) and 7 other writ petitions. In the said writ petitions a Division Bench of this Court, passed an interim order on 16.10.1995, permitting the appellants to reconstruct the structures which were illegally demolished in breach of the order of injunction. Further directions were issued by the Division Bench permitting the appellants to resume to their residence and/or business without prejudice to the rights and contentions of the parties. The Division Bench further directed an enquiry to be held as to who was responsible for demolition of the shops and breach of the order of injunction granted by the Civil Court. Accordingly an enquiry was held by the District Judge who has reported that the structures were possibly demolished by the Dhule Municipal Corporation and the Collector though it could not be specifically determined who actually demolished the structures. He further held that the structures were demolished contrary to the order of injunction. I am informed at the bar that the writ petitions are still pending and the issue as to the illegal demolition is yet to be finally adjudicated by this Court. 11. He further held that the structures were demolished contrary to the order of injunction. I am informed at the bar that the writ petitions are still pending and the issue as to the illegal demolition is yet to be finally adjudicated by this Court. 11. I have referred to these collateral events only to show the falsity of the respondents contention that the appellants were interested in delaying the hearing of the appeals before the District Judge to take unfair advantage of the order of injunction passed by the Civil Court, for even otherwise the appellants were protected by an order passed by the Division Bench of this Court. 12. The contention of the respondent that the order of status quo passed by this Court on 25.12.2005 was operative only till 24.11.2005 is one of the possible interpretations. The other possible interpretation is that the order of status quo was to remain in force till civil revision applications were heard and 24.11.2005 was only the date fixed for hearing the civil revision applications on admission, and not for expiry of the order of status quo. It is possible that laymen like the appellants who came as refugees and whose structures were once demolished in breach of the order of injunction and who were thus sufferers believed bonafide, that there was an order of status quo operating in their favour. 13. In my view though the decision of the District Judge that there was no stay for hearing of the appeals is a possible view, the other view that there was an order of stay was equally possible. It would have been appropriate for the learned District Judge to refer the matter to this Court in the event he had any doubt. Assuming however, that District Judge was right in holding that there was no order of stay in any event the appellants were justified in believing that there was an order of stay operating in their favour and therefore not participating in hearing of the appeals. 14. I am reminded of the observation of the Supreme Court in Collector, Land Acquisition, Anantnag Vs. Mst. Katiji AIR 1987 SC 1353 to the effect: "Judiciary is respected not on account of its power to legalise injustice on technical grounds but because it is capable of removing injustice and is expected to do so." 15. 14. I am reminded of the observation of the Supreme Court in Collector, Land Acquisition, Anantnag Vs. Mst. Katiji AIR 1987 SC 1353 to the effect: "Judiciary is respected not on account of its power to legalise injustice on technical grounds but because it is capable of removing injustice and is expected to do so." 15. In my view, justice would not be done by permitting the exparte decision of the District Court to stand. In the facts and circumstances of the case an opportunity of hearing must be given to the appellants to argue their case before the District Court. This is necessary to remove injustice caused by exparte hearing of the appeals and do justice by remanding the matters for re-hearing in accordance with law. 16. In the circumstances, the appeals are allowed. Impugned judgments and orders are set aside and all the first appeals are remanded back to the District Court for hearing them on merits. 17. It may be mentioned at this stage that civil revision application nos. 16 of 2005 and connected C.R.A.s in which interim order of status quo was previously passed have since been decided. Status quo order has now came to an end. Taking into consideration the fact that the first appeals are old and the issue relates to alleged encroachment on public property the District Judge is requested to decide the appeals expeditiously and preferably six months hereof.