Case Note & Summary
The case pertains to a Letters Patent Appeal filed against the order of a learned Single Judge of the Bombay High Court, Nagpur Bench, who had dismissed a writ petition challenging an order passed by the Civil Judge. The Civil Judge's order permitted the plaintiff to raise fencing on the suit property. The appellant, who was the defendant in the original suit, contended that the order was prejudicial. However, the Division Bench observed that the order by itself did not prejudice the interest of the defendant, as the plaintiff was in possession of the suit property. Additionally, the impugned order was 10 years old, and the suit subject matter dated back to 1987. The Court noted that the learned Single Judge had scrutinized the papers and rendered the judgment in the absence of the petitioner's advocate. The Division Bench, after hearing the appellant and scrutinizing the merits, found no ground for indulgence. Consequently, the Letters Patent Appeal was dismissed.
Headnote
A) Civil Procedure - Interim Orders - Fencing - No Prejudice - The trial court's order permitting the plaintiff to raise fencing does not prejudice the defendant's interest as the plaintiff is in possession of the suit property. The order being 10 years old and the suit pending since 1987, no indulgence is called for. (Paras 5-6)
B) Letters Patent Appeal - Delay and Laches - Dismissal - The appeal against the order of the learned Single Judge dismissing the writ petition was dismissed as the impugned order was 10 years old and the suit subject matter was of 1987. (Paras 6-7)
Issue of Consideration
Whether the Letters Patent Appeal against the order of the learned Single Judge dismissing the writ petition challenging the trial court's order permitting the plaintiff to raise fencing should be entertained.
Final Decision
The Letters Patent Appeal is dismissed.
Law Points
- Interim orders
- possession
- fencing
- no prejudice
- delay
- laches
Case Details
2010 LawText (BOM) (01) 228
L.P.A. St. No.2650 of 2007
A.H. Joshi, R. K. Deshpande
Shri A. D. Sonak for the applicants, Shri R. Y. Rajkarne for Respondents no.2, 4 & 5, Shri V. G. Wankhade for Respondent no.1 & 3
Dilip s/o Bayaram Choudhary (Dead) through L.R.'s
Punjabrao Krishi Vidyapeth, Akola and Others
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Nature of Litigation
Letters Patent Appeal against dismissal of writ petition challenging trial court order permitting plaintiff to raise fencing.
Remedy Sought
Appellant sought to set aside the order of the learned Single Judge dismissing the writ petition.
Filing Reason
Appellant challenged the trial court's order permitting the plaintiff to raise fencing on the suit property.
Previous Decisions
The Civil Judge passed an order permitting the plaintiff to raise fencing. The learned Single Judge dismissed the writ petition challenging that order.
Issues
Whether the Letters Patent Appeal should be entertained given the age of the impugned order and the pendency of the suit.
Submissions/Arguments
Learned Advocate for the petitioner stated that had the Advocate for the petitioner been heard, it would have offered an opportunity to the appellant to advance his submissions.
Ratio Decidendi
The trial court's order permitting fencing does not prejudice the defendant as the plaintiff is in possession. The impugned order being 10 years old and the suit pending since 1987, no indulgence is called for.
Judgment Excerpts
It is seen that by the order passed by the Civil Judge, what was ordered by the said Court is permitting the plaintiff to raise the fencing. This order by itself does not prejudice the interest of the defendant.
It is not in dispute that the plaintiff is in possession of suit property. Moreover, now the order impugned is 10 years old. The suit subject matter is of 1987. On these facts, no indulgence is called for.
Procedural History
The Civil Judge passed an order permitting the plaintiff to raise fencing. The defendant filed a writ petition before the Bombay High Court, Nagpur Bench, which was dismissed by the learned Single Judge. The defendant then filed a Letters Patent Appeal before the Division Bench, which was dismissed on 13th January 2010.
