1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.309 OF 2010 Sumanbai Raosaheb Palaskar ..Petitioner Versus Bhimdas Saju Rathod ..Respondents ... Shri S.V.Gangapurwala. Advocate for the petitioner. ... CORAM : S.B.DESHMUKH,J. Dated : 14.1.2010 PER COURT :- 1. Heard learned counsel for the petitioner. 2. This petition takes an exception to the judgment and order passed by the learned trial Judge below Exhibits 58 and 66 in Regular Civil Suit No.441 of 2008. 3. The petitioner is original plaintiff in the said suit. It was filed simpliciter for injunction against the defendants. Defendant No.11 had filed an application seeking temporary injunction against the plaintiff at Exhibit 34 in the said suit. This application was heard by the trial court and temporary injunction was issued against the plaintiff. Thus, the plaintiff was injuncted by order dt.5.12.2008. Unpleasant plaintiff 2 challenged the said order and the end matter was the Writ Petition No. 6451 of 2009 in this Court. After hearing the parties, this Court, dismissed the said Writ Petition on 16.4.2009. Successful defendant No.11 despite the order of the trial court and confirmed by the High Court, was not in a position to cultivate her land in dispute. She, therefore, moved an application seeking police aid. Learned counsel for the petitioner fairly concedes that copy of the said application is not annexed with the present petition but in paragraph No.11 of the petition, there is a reference to this application. Conduct of defendant No.11 seems to be equally fair. In her application Exhibit 58, in paragraph No.5, she made a statement that earlier application seeking police aid was filed in the suit by her. However, said application, after hearing the parties, came to be rejected by the trial court on 22.6.2009. It seems that defendant No.11 did not challenge that order before the appropriate forum. It is further pleaded that after rejection of the said application defendant No.11 along with her husband and some family members had been to the suit land on 26.6.2009 at 10.30 a.m. According to defendant No.11 crop of Red Gram was already sown by defendant No. 11 in the field. At that time Raosaheb and some others started destruction of crop in the suit field. Defendant No.11 requested them and asked not to destroy the crop. It is further pleaded that thereon Raosaheb instigated other female members to assault on defendant No.11 and ultimately she was assaulted. Further allegation is also made that another person Sominath beat defendant No.11 for which a complaint / first information report was lodged with Phulambri Police Station Copy of 3 the said complaint is on record. Learned counsel for the petitioner points out Exhibit 69 (Page 60). This is an application filed on behalf of defendant No.11. Learned counsel or the petitioner points out the discrepancies in the pleadings and/or facts alleged in these two applications i.e. Exhibits 58 and 69. According to him in Exhibit 58 the crop sown is shown as “Tur” whereas in application Exhibit 69 crop sown is shown as “Jawar / Kardai” (Rabbi Crops). According to him, this leads to an inference that defendant No.11 is not sure while saying about the crops sown in the suit field. 4. Learned counsel for the petitioner took me through the order passed by the trial Court. The trial Court in concluding portion of paragraph No.3, has observed, “Even if it is considered from the point of view of the plaintiff that the plaintiff or any person on her behalf has caused no obstruction to the possession of the defendant no prejudice or hardship is likely to be caused by granting the police aid.” It has been submitted by the learned counsel for the petitioner that only because no harm or prejudice is likely to be caused to other side - the plaintiff in the present case - police aid cannot be granted. 5. Learned counsel for the petitioner relied upon the judgment of the learned Single Bench of this Court in the case of Nirabai Vs. Narayan [2004 (1) Mah.L.J. 1058] in support of his submission. With the assistance of the learned counsel for the petitioner, I have seen paragraph 4 No.2 of the said judgment, wherein, the facts have been narrated. Paragraphs 7 and 8 of the said judgment are also relied upon by the learned counsel for the petitioner 6. As I have noticed earlier, temporary injunction application of defendant No.11 was heard by the trial Court and injunction was granted against the plaintiff. Said order was confirmed by this Court in Writ Petition No.6451 of 2009. Factually, it is not in dispute that even after dismissal of the Writ Petition on 16.4.2009, it is alleged by defendant No.11 that she could not cultivate the suit field nor was able to carry out various agricultural operations in the suit field. The fate of aggrerian community depends on several circumstances and calamities. Apart from the adversities to be faced by the community from the nature, they are also required to face the adversities created by rival parties in the litigations. End of the matter is to resort to the civil court for justice. The orders or decrees passed by the civil court are aimed for delivering justice, resolving controversy and to see that such orders / decrees help creating and maintaining the rule of law. Here is the case, where the competent civil court had granted temporary injunction under order XXXIX Rules 1 and 2 of CPC in favour of defendant No.11, which has been confirmed by this Court. Despite this order, winner litigant defendant No. 11 was required to make an application seeking police aid. She could not succeed in getting the police aid. Said order is not before this court and therefore, I am refraining from observing anything. I am only noticing the fact as has been stated by defendant No.11 in paragraphs 5 and 6 of the 5 application Exhibit 58 filed on 8.7.2009. A grievance is raised that within fifteen days of the rejection of earlier application this application has been filed. One has to appreciate the difficulties and psychology of the winner litigant, at least at the stage of temporary injunction and the ground realities faced by the litigant. According to defendant No.11 she is not in a position to cultivate the land though the High Court was on her side. She has quoted an incidence of 26.6.2009. Veracity of the incidence may be a matter to be dealt with by the competent Court because averment is made that the criminal law is set in motion. At this stage, I am only noticing the allegation of defendant No.11 that she had lodged a complaint with the police. On the background of these facts, learned trial Judge has exercised the power under Section 151 of CPC by which, inherent powers are vested with the civil court. This section only reminds the civil court that whenever there is absence of specific provision in CPC that gap has to be filled in, in the interest of justice, by the Court in the appropriate cases. Such is the power exercised by the Court in the case on hand in the interest of justice. Order of temporary injunction cannot be used only for garnishing the walls of the house of defendant No.11. Fruits of the order passed by the trial Court and confirmed by the High Court need to be received by the party in whose favour the same has been passed. In my view, the trial Court has justifiably passed an order granting the police aid. 7. The discrepancy pointed out by the learned counsel for the 6 petitioner in showing the crops sown, as stated earlier in this order, I have only noticed for rejection. The agricultural year is the matter of Maharashtra Land Revenue Code 1966, wherein the power has been vested with the State Government to issue notification for commencement of the agricultural year. The State of Maharashtra has issued a notification and 1st of April of every year is notified as the day of commencement of the agricultural year. It is a matter of common knowledge that here, in the State of Maharashtra, broadly there are two seasons for agriculture. They are called “Kharif” and “Rabbi” respectively. Reference of such season is made by defendant No.11 in her application Exhibit 58. Marching towards the implementation of modern methods in agriculture, motivated by the State Government, various crops of different durations are being encouraged. Therefore, reference of two crops pointed out by the learned counsel for the petitioner, in fact, is in-significant. Failure of crops for valid reasons i.e.lack of rains, irrigation facilities, diseases etc.is the natural phenomenon. That is the reason why the agriculturists who has put in some labour in sowing one crop is compelled to switch over to another crop. In this situation, this circumstance cannot be capitalized before the Court to argue that there is a discrepancy in mentioning the crops sown. 8. It is legal duty of the Court to see that the orders passed by the Court are being implemented gainfully in favour of the winner litigant so long those are not turned down by the superior Court. 7 9. Judgment cited by the learned counsel for the petitioner has been carefully considered by me. Precedents, if binding, needs to be considered, if there is a reference to facts, controversy in issue, discussion on statutory provisions, reasoning for coming to a conclusion and clear statement of law and principles settled or answered by the judgments. It is so observed by the Full Bench of this Court in the matter of Shikshan Prasarak Mandal Vs. State of Maharashtra [2009 (6) B.C.R.1]. I am in agreement with the view taken by the Full Bench. I have applied the said test to the judgment cited before me on behalf of the petitioner. In my view, the judgment in the case of Nirabai (supra) does not help the petitioner. Some paragraphs or few sentences of the judgment cannot be said to be a binding ratio. 10. This petition is devoid of any substance. The Writ Petition is therefore, rejected. No order as to costs. ( S.B.DESHMUKH, J.) ... akl