1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CIVIL APPLICATION NO. 9024 OF 2009 IN WRIT PETITION NO. 2887 OF 2009 Dr. Khayyumkhan Mohammad Khan Versus Ishaq Abdullasaheb Hamdule .. Respondents Mr. N.P. Patil, Jamalpurkar, Advocate for the applicant. Smt. Anjali Vajpai Dube, Advocate for the respondent. CORAM : B.R. GAVAI J. DATE : 21ST NOVEMBER, 2009. ORAL ORDER 1] This is an application for vacating interim relief, which is granted by this court on 1st September, 2009. 2] Shri N.P. Patil Jamalpurkar, learned counsel appearing on behalf of the applicant submits that when the order was passed by this court on 1st September, 2009, the counsel could not remain present as the name of the counsel was not printed in the cause list circulated by the Advocates' Association. He submits that by order dated 1st September, 2009, the learned Single Judge has directed possession to be handed over to the petitioners/non applicants. He submits that by an interim order, a final relief is granted, which is not permissible in law. He,therefore, submits that it is necessary in the interest of justice to vacate the 2 interim relief. 3] Smt. Bajpai-Dube, learned counsel apperaing on behalf of the respondents on the contrary submits that the learned Single Judge of this court, after hearing the parties at length has granted the interim relief. She submits that since the order impugned in the present petitin is totally perverse and has been passed by ignoring the earlier orders, the learned Single Judge has rightly directed possession to be handed over to the petitioners/respondents. 4] No doubt, an order which is in the nature of mandatory injunction has to be granted in a very rare case. It is also equally true that unless exceptional and compelling circumstances are made out , this court would be slow in granting such a relief, which may, at times, amount to granting a final relief. However, it is not as if this court is powerless to grant such a relief. If a party makes out a case for exercise of such discretion, the court would always be empowered to issue such directions. 5] In the present case, alongwith the suit, the present petitioners had also filed an application under Order 39 rule 1 and 2 of C.P.C. for temporary injunction. The learned trial court, vide order dated 15/7/2005, disbelieved the case of the defendants (respondents) that they are in possession and believed the case of the plaintiffs ( petitioners ) that he was in possession of the suit premises. The learned trial court in paragraph 21, finding that the plaintiff is in actual legal possession of the suit premises, granted an order of injunction against the defendant No.11 3 (respondent herein) restraining him from interfering with the possession of the plaintiff over the suit property. The said finding of fact has been duly approved by the learned Appellate court vide order dated 22nd December, 2005, by re-appreciating the material on record . The learned Appellate court in paragraph 18 of the said order has clearly observed that except the recitals in the sale deed and affidavit of the respondent herein, there was nothing on record to presume possession of the defendant No.11 to the extent of the suit property alienated in his favour. On the contrary, the learned appellate court also found that it was an undisputed position that after the demise of deceased Abdulla Sab, the garage was handed over to the plaintiff (petitioner herein) for better management. The respondent herein, being further aggrieved by that order, approached this court and this court, vide order dated 13th April, 2008 disposed of the petition on the ground that the petition arises out of an interlocutory order. 6] It appears that the learned Civil Judge (S.D.) Latur, vide the order impugned in the present petition, dated 19.1.2009, has totally misinterpreted the order passed by this court. The learned civil Judge (Senior Division) Latur, in paragraph 6 of the order has observed thus :- “The order of Hon'ble District Court is not confirmed by Hon'ble High Court. It can not be held that on the strength of order of Lower Court and High Court, the plaintiff should be held in possession of the suit property. On the contrary the order of status-quo passed by Hon'ble High Court amounts to setting aside the order of Hon'ble 4 District Court. The plaintiff was never in possession enjoyment of the suit property. Therefore, the question of restoration of possession do not arises.” 7] The learned Civil Judge (Senior Division) has observed that the order passed by the District Judge was not confirmed by this court. The learned Judge has further observed that on the contrary, the order of status-quo was granted by the High Court and it amounts to setting aside the order passed by the appellate court. He further observes that the plaintiff was never in possession and enjoyment of the suit property. I am constrained to observe that the observations of the learned Civil Judge (S.D.) cannot be termed anything else than perverse. 8] The finding of the learned Civil Judge (Senior Division) that the petitioner was in possession has been approved by the learned District Judge, who, in any case, is a superior judicial officer in the hierarchy. The learned District Judge has given elaborate reasons for confirming the finding of the trial court that the petitioner was in possession and the defendant No.11 i.e. Respondent herein had failed to establish that he was in possession. This court had refused to entertain the writ petition only on the ground that the petition arises out of an interlocutory order. I am unable to understand as to how the learned trial Judge gives a finding that in effect, this court had set aside the order passed by the learned District Judge. In my view, the said finding is totally perverse. 5 9] I am also of the considered view that the said finding is also against the judicial propriety. When the learned District Judge, who is undoubtedly a superior judicial authority than the civil Judge (Senior Division), has in unequivocal terms confirmed the finding of the civil Judge (Senior Division) regarding possession of the plaintiff over the suit property, the learned Civil Judge (Senior Division) could not have observed anything contrary to such a finding. 10] In the result, I find that in the facts of the case, the learned Single Judge of this court was totally justified in granting the relief which has been granted, though it is in the nature of a mandatory injunction. 11] Shri N.P. Patil Jamalpurkar, learned counsel relies on the judgment of the Apex Court in the matter of “Bank of Maharashtra Vs. Race Shipping and Transport Co.Pvt. Ltd.” reported in (1995) 3 SCC 257. in support of the submission that an interim relief, which is in substance a final relief sought in the petition, ought not to have been granted. . In so far as the reliance placed by the learned counsel for the applicant on the judgment of the Apex Court in the matter of “ Bank of Maharashtra Vs. Race Shipping & Transport Co.” (supra) is concerned, I find that the said judgment would not be applicable to the facts of the present case. In the said case, a cheque drawn by the writ petitioner company (before the High Court) was honoured by the respondent (Bank). It was the contention of the writ petitioner company that the cheque was under the signature of 6 authorized persons and one of the signatures on the said cheque was forged one. The petitioner company had, therefore, claimed reimbursement from the bank but the bank refused to reimburse contending that, as to whether the signature of one of the signatories on the cheque was forged or not, was still under investigation and till the signature is found to be forged one, there cannot be a question of reimbursement. In this background, a writ petition was was filed by the writ petitioner company. In the said case, the High Court, by an interim order, directed reimbursement of the amount. In this factual background, the Apex Court, found that, when the question as to whether the cheque was having a forged signature or not, was a matter still under investigation, the interim relief granted by the High Court, directing reimbursement was not justified. The same is not the case here. The applicant, in breach of the order of injunction passed by the High Court and confirmed by the appellate court, has entered into possession. In that view of the matter, I do not find any error committed by the learned Single Judge of this court, in restoring the possession of status-quo ante. 12] Shri N.P. Patil Jamalpurkar, further relies on the judgment of the learned Single judge of this court in the case of Harishchandra Narayan Maurya Vs. Rajendraprasad Dargabi Varma” reported in 1997(1) Bom.C.R. 28, to contend that while deciding the application what was relevant for the learned trial court was to find out as to who was in possession, on the date on 7 which the application was considered and, therefore, the earlier orders had no relevance while deciding the said application. In so far as this contention raised by Shri N.P. Patil Jamalpurkar in this respect is concerned, I am unable to accept the said contention. As already discussed hereinabove, there are 2 orders passed by the learned Civil Judge (S.D.) and the learned District Judge who in unequivocal terms have held that the petitioner was in possession of the suit premises on 15/7/2005, I.e. the date on which the order was passed by; the trial court granting application for injunction and on 22/12/2005 when the appeal preferred there against has been dismissed by the learned Appellate Court. 13] When two courts have clearly come to a finding, may be, prima facie, that the petitioner was in possession, then if the applicant herein streneously urges that he is in possession of the suit premises, then it can easily be presumed that the contention of the petitioner (respondent herein) that the defendant No.11 had forcibly taken possession of the suit premises when the petitioner had gone for his daughter's marriage, was correct. If a person defying the orders of the court does something in contravention of the orders I.e. breaches the order of injunction granted by the courts below, then in such an eventuality, the courts cannot be held to be powerless to restore the status-quo-ante so that the orders passed by the courts are given effect to in their true spirit. It is to be noted that the jurisdiction exercised by the learned single Judge of this court is also an equitable jurisdiction. It is also a settled principle of law that there cannot be a wrong without a 8 remedy. If a person who chooses to break the law and breach an order of injunction, this court cannot be held to be powerless to restore the possession of a party, who has been concurrently found to be in possession by the trial court and the appellate court in earlier proceedings. 14] The civil application is, therefore, dismissed with costs, which are quantified at Rs. 10,000/-. Needless to state that the observations made hereinabove are made only for considering the civil application for vacation of stay. [B.R. GAVAI, J.] GRT/-