Case Note & Summary
The petitioners, Tarachand and Kiran Shinde, filed a Regular Civil Suit No. 12/1997 for declaration and permanent injunction in respect of an open plot. The suit was dismissed on 18/11/2010 by the trial court, which recorded a finding that the petitioners failed to prove their ownership and possession. However, issue no.4 regarding whether the defendants proved that the suit property was Abadi Land and they acquired title by adverse possession was answered against the defendants (respondents). Against the dismissal, the petitioners filed an appeal along with an application for stay. The learned District Judge-1, Chandrapur, by order dated 29/1/2011, rejected the stay application. The petitioners then filed the present writ petition under Articles 226 and 227 of the Constitution of India challenging the said order. The High Court noted that the trial court had recorded a finding that the petitioners failed to prove ownership and possession. The Court observed that the Appellate Court's order refusing stay was a discretionary order and that the petitioners had not made out a case for interference under Articles 226 and 227. The writ petition was accordingly dismissed. Rule discharged with no order as to costs.
Headnote
A) Civil Procedure - Stay Pending Appeal - Appellate Court's Discretion - The Appellate Court rejected the stay application filed by the plaintiffs/petitioners pending appeal against dismissal of suit for declaration and permanent injunction. The trial court had recorded a finding that the plaintiffs failed to prove ownership and possession. The High Court held that the Appellate Court's order refusing stay was a discretionary order and did not warrant interference under Articles 226 and 227 of the Constitution of India. (Paras 2-5)
Issue of Consideration
Whether the order dated 29/1/2011 passed by the learned District Judge-1, Chandrapur rejecting the application for stay pending appeal filed by the petitioners is liable to be interfered with under Articles 226 and 227 of the Constitution of India.
Final Decision
The writ petition is dismissed. Rule discharged. No order as to costs.
Law Points
- Appellate Court's discretion to grant stay
- Interference under Articles 226 and 227 of the Constitution of India
- Scope of writ jurisdiction against interlocutory orders
Case Details
2011 LawText (BOM) (07) 117
Writ Petition No.1261 of 2011
Shri U.K. Bisen for the petitioners, Shri M.P. Kariya for respondent no.1
Shri Tarachand s/o Chandrasen @ Ramchandra Shinde and Kiran d/o Chandrasen @ Ramchandra Shinde
Shakuntala Shankar Pimpalshende and Ramesh s/o Ganpat Gedam
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Nature of Litigation
Civil writ petition challenging rejection of stay application pending appeal in a suit for declaration and permanent injunction.
Remedy Sought
The petitioners sought to quash the order dated 29/1/2011 passed by the learned District Judge-1, Chandrapur rejecting their application for stay pending appeal.
Filing Reason
The petitioners' suit for declaration and permanent injunction was dismissed by the trial court, and their application for stay pending appeal was rejected by the Appellate Court.
Previous Decisions
The trial court dismissed Regular Civil Suit No. 12/1997 on 18/11/2010, recording a finding that the petitioners failed to prove ownership and possession. The Appellate Court rejected the stay application on 29/1/2011.
Issues
Whether the Appellate Court's order rejecting the stay application is liable to be interfered with under Articles 226 and 227 of the Constitution of India.
Submissions/Arguments
The petitioners argued that the Appellate Court erred in rejecting the stay application.
The respondents supported the impugned order.
Ratio Decidendi
The Appellate Court's order refusing stay pending appeal is a discretionary order and does not warrant interference under Articles 226 and 227 of the Constitution of India, especially when the trial court has recorded a finding that the petitioners failed to prove ownership and possession.
Judgment Excerpts
The above petition filed under Articles 226 and 227 of the Constitution of India takes exception to the order dated 29/1/2011 passed by the learned District Judge-1, Chandrapur whereby the application for stay pending Appeal filed by the petitioners came to be rejected.
It is an undisputed position that against refusal of temporary injunction by the trial Court, the plaintiffs, i.e. petitioners herein had approached the Appellate Court and the Appellate Court has refused to grant stay.
Procedural History
The petitioners filed Regular Civil Suit No. 12/1997 for declaration and permanent injunction. The suit was dismissed on 18/11/2010. The petitioners filed an appeal and an application for stay. The Appellate Court rejected the stay application on 29/1/2011. The petitioners then filed the present writ petition under Articles 226 and 227 of the Constitution of India.
Acts & Sections
- Constitution of India: Articles 226, 227
