1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. WRIT PETITION NO.7137 OF 2009 Ambajogai Peoples Co-operative Bank Ltd., Branch Beed Tq. & Dist. Beed Through its Special Recovery and Sales Officer. PETITIONER VERSUS 1. Shivaji s/o Bhagwanrao Kute, age 38 yrs, Occ. Business, R/o Nawa Mondha, Beed. Tq. & Dist. Beed. 2. Bhagwat s/o Namdeo Kute, age 46 years, Occ. Business, R/o Dhandeep Traders, Jalna Road, Beed. Tq. & Dist. Beed. 3. Sangita w/o Bhagwat Kute, age 40 years, Occ.Household, r/o Dhandeep Traders, Jalna Road, Beed. Dist Beed. RESPONDENTS === Shri V.D. Salunke, advocate for petitioner. Shri M.P. Tripathi, advocate for respondent No.1. Mr. V.B. Anjanwatikar Advocate for Respondent Nos. 2 and 3. === CORAM : S. B. DESHMUKH, J. DATE : 21ST JANUARY, 2010. 2 ORAL JUDGMENT :- 1. Heard learned counsel for the respective parties. 2. Rule. Rule made returnable forthwith. Heard finally, by consent of the parties. 3. This Writ Petition is filed by the respondent No.3 in civil suit No. 305/2008. Parties, hereinafter are being referred to their status in Regular Civil Suit No.305/2008 in the court of learned Civil Judge (S.D.), Beed. Copy of the plaint is made available by the counsel appearing for the respondent No.1. It is accepted, marked as letter ‘X’ for identification. Taken on record. In that suit, respondent No.1 is plaintiff, respondent Nos. 2 and 3 of this writ petition are defendants No.1 and 2 and present petitioner is respondent No.3. Counsel for the original plaintiff at the outset conceded that present petitioner/original defendant No.3 is the Cooperative Bank registered under the Provisions of Maharashtra Co-operative Societies Act, 1960 (herein after referred to as ‘Said Act’). The counsel appearing for original plaintiff has made available copy of the plaint. This is a plaintive suit for perpetual injunction. Description of the property is given in paragraph no.1 of the plaint. It is house No.(old) 3-14-102 corresponding to new house No.3-14-104, New Mondha, Beed. 3 4. In paragraph No.2 of the plaint, plaintiff made a statement that since about 5-6 years plaintiff runs a business in the name and style “Bhagwan Trading Company”. Earlier, father of the present plaintiff, according to his contention was running his business in the name and style "M/s Namdev Nathuba Kute." Father of the plaintiff died on February 21, 2004. Before his demise, he was not in a position to run the business and therefore, it was handed over to the plaintiff. Plaintiff was running the business in his name, so long the market committee was in Mondha area. Thereafter there was shifting of market committee in another premises which is situated on Kurla Road. Because of this shifting of the premises of the business, according to plaintiff, he started ‘Bhagwan Trading Company’ in a suit property. Plaintiff in his shop sells cattle-food. According to the plaintiff, the suit property was purchased by his father when they were joint. After partition, father of the plaintiff used to give Rs.300/- towards rent to defendant No.1. After demise of father of the plaintiff, till date of filing of the suit, plaintiff was making payment of Rs.300/- per month towards rent. According to plaintiff, on account of cordial relations among the parties, father of the plaintiff never demanded receipts from father of the defendant No.1. So far consumption of electricity in the suit property is concerned, payment thereof was made by the plaintiff. According to the plaintiff, it was agreed between the parties that plaintiff shall make payment of electricity charges. So far house taxes to be paid to local body i.e. Municipal Council, plaintiff made a statement in paragraph No.4 that he was depositing said amount with the council 4 concerned and adjustment among the plaintiff and defendants was being made. With this pleadings, the plaintiff has also pleaded in paragraph No.5 and 6 that there was agreement entered into by Mr. Namdev Kute i.e father of defendant No.1 in favour of brother of plaintiff namely : Ankush. 5. He has further alleged in paragraph No.6 that, defendant Nos. 1 and 2 also tried to harass the plaintiff. Despite harassment to the plaintiff and his attitude to run business in the premises, defendant Nos.1 and 2, according to plaintiff have collided and with an intention to evict the plaintiff from the suit property got some entries of charge over the property. For this exercise, it is also alleged by the plaintiff that defendant Nos. 1 and 2 have collided with officers of the defendant No.3. The plaintiff ultimately, prayed a decree for perpetual injunction against the defendants. This suit was filed on August 18, 2008. 6. The plaintiff had also filed an application seeking temporary injunction under Order 39 Rule 1, 2 of the Code of Civil Procedure against the defendants. Copy of this application is on record annexure ‘C’. In this application for temporary injunction, plaintiff had prayed for temporary injunction restraining the defendants from interfering with his possession over the suit property/ suit shop. This application was filed on August 18, 2008. 7. The defendants after entering appearance, it appears, had raised 5 a contention under section 9-A of the Code of Civil Procedure. Trial Court heard the parties, passed some order on 13 February, 2009, pertaining to contention raised under section 9A of the Code of Civil Procedure i.e. jurisdiction of the learned judge to entertain the suit. 8. Order passed by the trial court was the subject matter of Writ Petition No.2292/2009. This writ petition has been heard and disposed of finally by this Court. Order is at annexure ‘D’ dated 20.04.2009. This Court, after hearing the parties, directed learned trial court, to decide and dispose of the suit expeditiously as possible, within a period of six months from that day and at the time of final disposal of the suit, decide issue of jurisdiction of the Civil court to entertain the suit filed by the original plaintiff. 9. Apart from this, Exh.F (page 43) is a copy of the application filed by the present plaintiff in the trial court under section 151 of Code of Civil Procedure, on February 16, 2009. 10. With the assistance of counsel for the parties, I have seen the prayer made in this application, which I am reproducing herein below :- “Interlocutory order in the form of mandatory injunction may kindly be issued to the opponent (bank authorities) to remove the seal / locks put up by them to the shop premises (suit property) and oblige.” 6 11. Trial court passed an order below Exh.41/1 i.e application for interim mandatory injunction filed under section 151. This order is on record (page 45). This trial court after hearing parties, rejected this application Exh. 41/1 by order dated 05.05.2009. In paragraph No.4 of the order, trial court has made a reference to the order passed by this Court in Writ Petition No. 2292/2009. In paragraph No.5 trial court has observed that, plaintiff by an application Exh.41, is seeking mandatory injunction, however, there is no pleading raised in the plaint. Trial Court, thus, rejected the application filed by the plaintiff Exh.41/1. 12. Order passed by trial court below Exh.41/1 in RCS No.305/2008 dated 05.05.2009 was subject matter of Misc. Civil Appeal No.39/2009 filed by the aggrieved plaintiff. This appeal after hearing the parties has been allowed by the First Appellate Court i.e Learned District Judge - 3 Beed by the judgment and order on September 19, 2009. The First Appellate Court has allowed the appeal, quashed and set aside order passed by the trial court below Exh.41/1 dated 05.05.2009 and directed the original defendant No.3 to remove the seal and lock put up by them over the suit property. I am just quoting the operative part of the Appellate court herein below (page 56). “1. Appeal is allowed, parties shall bear their own cost. 2. Order passed below Exh.41 dated 05.05.2009 is set aside. 3. The respondent No.1 defendant No.3 is directed to 7 remove seal and lock put up by them over the suit premises and they shall take symbolic possession for recovery of loan amount by due process of law.” 13. Order passed by the learned District Judge – 3 Beed in Misc. Appeal No.39/2009 is challenged in this writ petition by the defendant No.3. Counsel appearing for the petitioner relied on the judgment of learned Division Bench of this Court in the matter of Vasundhara Ashokrao Patil v/s. Rajaram Bapu Sahakari Bank Ltd, Sangli and others. reported in 2000-04 page 200. There in that reported case, question for consideration before learned Division Bench was whether a dispute would lie under section 91 of the Act challenging the recovery certificate granted under section 101 of the said Act. According to counsel Mr. Salunke paragraph No.7 is relevant, wherein learned Division Bench of this Court, has referred earlier judgment of this Court and also considered provisions laid down under section 154 i.e. revisional powers and reached a conclusion that revisional application challenging a certificate under section 101 of the Act is perfectly maintainable. If, party fails in the revision application, it has been opined that such party can resort to a remedy of the civil suit. This was in fact so held in the matter of The Sangli Sahakari Bank Limited V/s. The Divisional Joint Registrar, reported in 2002 (2) Mh. L. J. 948. Learned Division Bench has just made a reference to this judgment. I have considered facts and ratio of this judgment. 14. In the case on hand, I am restraining myself from referring the 8 contention raised as to the maintainability of the civil suit before the civil court. Reason is that in writ petition No.2292/2009 learned Single Judge of this Court has directed trial court to decide this issue at the time of final hearing of the suit. Both the learned counsel agreed that suit is still pending in the trial court. 15. I am concerned with the order passed below Exh.41/1, by the trial court against the plaintiff, setting aside of that order by the first appellate court in Misc. Civil Appeal. 39/2009. This issue of temporary injunction, only is relevant in the case on hand. Counsel appearing for the original plaintiff took me to the various documents which are placed on record by him and by the petitioner. R-1 is report submitted by the Assistant Registrar, Co-operative Societies to Divisional Joint Registrar, Co-operative Societies, Beed dated 01.08.2009. Occasion for submitting such report was the direction given by the Deputy Registrar, Co-operative Societies, on the complaint of the plaintiff. I have considered this report of the Assistant Registrar. Counsel for the plaintiff thereafter pointed out report of the District Deputy Registrar, Co-operative Societies to the Divisional Joint Registrar, Co-operative Societies, Latur dated 04.09.2009 (page 69). There, District Deputy Registrar, Co- operative Societies, Beed recommended disrobing Mr. N.P. Gound from the powers conferred upon him under section 156 and further recommended a warning to be issued to the Bank and initiation of appropriate action by the Registrar of the Co-operative Societies, Pune. Then counsel also refers 9 another recommendation made by the Divisional Joint Registrar, Co-operative Societies, Latur to the Commissioner of Co-operative Societies, Pune (page 71) dated October 27, 2009. At the end of this communication, Divisional Joint Registrar, Co-operative Societies, Latur recommended that powers vested with Mr. Gound under section 156 needs to be taken away. He has also mentioned that Mr. Gound was empowered to exercise this powers under section 156 till 31.12.2009. The Divisional Joint Registrar, Co-operative Societies had reached a conclusion that Mr. Gound had abused or misused powers under section 156. Therefore, powers should be taken away and warning needs to be given to the Bank i.e defendant No.3. Thus, it was also recommendation of the Divisional joint Registrar, Co-operative Societies, Latur obviously, matter was initiated by the plaintiff. 16. Counsel for the plaintiff then referred his re-joinder/additional affidavit-in-reply. There at page No. 86 he points out assessment list issued by the Beed Municipal Council. Charge of Rs. Ten lacs was created on the property mentioned in this list. He also points out one more document R-9. This document is dated 28.03.2007. It is mentioned in this document that guarantor No.4 is Bhagwat Namdeo Kute. He also points out last four lines from this document pertaining to Bhagwat Namdeo Kute (page 84) of this compilation, which is a copy of recovery certificate issued by the Deputy Registrar, Co-operative Societies, Beed for recovery of amount of Rs. 5,78,823=00 dated 31.01.2004. 10 17. I have given anxious consideration to the submission of the counsel appearing for the parties. Nature of the suit, I have discussed in foregoing paragraphs. There is no prayer for mandatory injunction in the suit itself under section 38 of the Specific Relief Act. Application Exh. 41/1, indisputably, filed by the plaintiff seeks ad-interim mandatory injunction. This application, according to plaintiff is filed under section 151. Section 151 has no application to the facts of the present case. Section 151 is not a codified section empowering civil courts. In fact, this section provides civil court that civil court has inherent jurisdiction to pass appropriate orders in the absence of specific provisions under the procedure of the Code. So far, mandatory injunction is concerned, it is a matter governed by section 38 of the Specific Relief Act. Firstly, person seeking interim mandatory injunction, must make averment and seek decree for perpetual injunction against the defendants. There is total lack of such pleadings in the suit itself, the important fact which has been noticed and recorded by the trial court. Interim orders are to be passed by the court either under Order 39 Rule 1 and 2 of the Code of Civil Procedure, section 94 , section 151 or common statute, in aid to the final relief sought by the plaintiff/applicant/appellant/petitioner before the Court. In the absence of claim of final relief, in fact, there is no propriety for the court to consider the interim relief. The court and the parties have to keep it in mind that interim orders are having limited life span. The moment proceeding stand terminated, interim orders have to go and stands vacated. 11 18. Learned District Judge while exercising the powers either under section 151 of Code of Civil Procedure or under section 38 of the Specific Relief Act, did not consider the nature of the suit itself. It appears that, he was swayed away on account of grievance raised by the plaintiff containing or contending various allegations. 19. In my view, order passed by the trial court, in fact, is legal, proper. Learned District Judge, ought not have interfered with reasoned order passed by the trial court. Exercise under taken, carried and completed by the First Appellate Court under Order 39 Rule 1 and 2 is perverse, needs to be quashed and set aside in extra ordinary jurisdiction. 20. Counsel for the plaintiff relied on the judgment of learned Single Judge of this Court in Writ Petition No.6836/2008 dated 04.02.2009. With the assistance of counsel for plaintiff, I have seen paragraph No.2,3 and 4 of the judgment. This court has recoded that parties have filed consent minutes. In my opinion, this judgment does not help to the respondent No.1 – original plaintiff. Copy of judgment is marked by letter ‘X’ for identification. It is taken on record. 21. Writ Petition, therefore, is allowed. Order passed by the First Appellate Court in Misc. Civil Appeal No.39/2009 dated 19.09.2009 is quashed and set aside. Order passed by the trial court rejecting temporary injunction 12 application is uphold and confirmed. It is made clear that, this court has not entered into and decided the issue of jurisdiction. On the contrary, in earlier writ petition, this Court has directed the trial court to decide issue at the time of final disposal of the suit. 22. Rule is made absolute in above terms. No order as to costs. ( S. B. DESHMUKH ) JUDGE ..... aaa/7137.09