1 977WP2600.2021

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD.

WRIT PETITION NO. 2600 OF 2021

Nagnath s/o Ramchandra Muttepwar

...Petitioner

Versus

Sadhana Nagnath Muttepwar & Ors. ...Respondents

.....

Mr. A. D. Kasliwal, Advocate for the petitioner

Mr. D. K. Kulkarni, Advocate for the respondents

.....

CORAM : BHARATI H. DANGRE, J.

DATE : JANUARY 6^TH, 2022

PER COURT : -

1.

Heard the learned Counsel for the petitioner and the

Counsel for the respondents.

2.

The petitioner, who is the original plaintiff, instituted Reg.

Civil Suit No. 671/2014, where he sought a declaration and

injunction. The suit being instituted in the year 2014, though the

respondents/defendants filed their appearance on being served they

failed to file their written statement, resultantly an order of ‘no WS’

came to be passed. This order was however set aside, on the request

made by the defendants subject to the costs. However, there was no

compliance and again an application was moved to file written

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statement on additional costs and the written statement was taken on

record on 19.08.2016. During the interregnum, the application filed

by the plaintiff vide Exh. 5 was decided and on 20.04.2015, it was

allowed by recording prima facie case, balance of convenience and

irreparable loss factor in favour of the plaintiff/petitioner. Recording

that in spite of affording many opportunities, the defendant nos. 1 to

3 have failed to file their say to the application, the contents of the

application filed by the plaintiff remained unchallenged and since the

defendants have not denied the possession of the plaintiff over the

suit property, the question as to whether the suit property is exclusive

property of the defendant no.1 purchased by her from her own

income can be decided by adducing evidence of both the parties.

While allowing the Exh.5, the defendant nos. 1 to 3 or any other

person claiming through them were temporarily restrained from

obstructing possession of the plaintiff over the suit property and

transferring the suit property to any other person till disposal of the

suit. On 03.11.2015, the plaintiff filed affidavit-in-chief in lieu of

examination vide Exh.23 and on 07.11.2016, the issues were also

settled. Though the evidence affidavit was filed, the respondents

failed to cross-examine the plaintiff and, therefore, the '

no cross'

order was passed on 14.03.2017. This order came to be assailed, on

the plea of the respondents claiming bona fides, which compelled the

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court to set aside the '

no cross' order on 15.07.2019 but despite

setting aside the earlier order, the plaintiff was not cross-examined.

On 23.10.2019, another application was moved for setting aside the

no-cross order and the Court by order dated 23.10.2019, once again

allowed the same but imposed costs. In the interregnum, the

respondents moved an application vide Exh. 43 by invoking Order 39

Rule 4 of the Code of Civil Procedure and by this application, the ex

parte order of injunction was sought to be vacated with a relief of

fresh hearing being afforded.

.

The learned Civil Judge Junior Division, Aurangabad by a

well reasoned order dated 05.10.2018, rejected the said application

by taking into consideration the scope and ambit of Order 39 Rule 4,

where an order of injunction is permitted to be discharged or varied

or set aside. Recording that the two circumstances which broadly

permit exercise of the said power being change in circumstances and

undue hardship in view of the continuation of interim injunction, the

learned Judge rejected the said appl