Oral Judgment:
Heard Shri Valmiki Menezes, learned Counsel appearing for the Petitioner and Shri V. A. Lawande, learned Counsel appearing for the Respondent nos. 1, 2, 6 to 9.
2. The above Writ Petition challenges an Order passed by the Courts below whereby the Petitioner has been held guilty of disobeying the Order of the Court under Order 39 Rule 2-A of the Civil Procedure Code and, inter alia, directed to remove the loose stones placed after an exparte Order came to be granted in favour of the Respondents by Order dated 21.06.2003.
3. It is not in dispute that the Respondents who are defendants in the suit filed by the Petitioner, moved an application for temporary injunction on the ground that the access claimed by the Respondents was being blocked by the Petitioner by putting up a compound wall. After the exparte Order dated 21.06.2003 came to be served on the Petitioner on the same day, it is the case of the Respondents that in blanket disobedience of the said exparte Order, the Petitioner chose to place five layers of stones over the suit access. The Petitioner disputed the said contention and pointed out that such blockage was existing as on the date of the exparte Order and, as such, according to the Petitioner, even assuming some stones were stacked after the impugned Order was served, does not amount to disobedience of the Order as claimed by the Respondents. Learned Civil Judge, Junior Division, Margao, after holding an inquiry and hearing the parties by Order dated 21.06.2002, the application filed by the Respondents under Order 39 Rule 2-A was granted partly and the Petitioner was ordered to remove five lines of stones piled up on the foundation within one month from the date of the Order.
4. Being aggrieved by the said Order, the Petitioner preferred the present Writ Petition.
5. Shri Valmiki Menezes, learned Counsel appearing for the Petitioner has assailed the impugned Order, by taking me through the written statements filed by the Respondents and pointing out that there is a specific averment therein that the suit access was already blocked before the Order of temporary injunction was passed. Learned Counsel further pointed out that the Petitioner had filed the suit to restrain the Respondents from using any access and from interfering with the property of the Petitioner. Learned Counsel further pointed out that as the access was already blocked by loose stones, the question of the learned Judge coming to the conclusion that the Petitioner has disobeyed the Order after the exparte Order was passed on 21.06.2002, would not arise. Learned Counsel further pointed out that as per the claim put forward by the Respondents, the width of such disputed access was 1.5 metres and, as such, the question of directing the removal of all the five lines of loose stones piled up on the foundation of the compound wall across the peripheral of the property of the Petitioner towards the western side, would not arise. Learned Counsel as such submits that the impugned Order deserves to be set aside.
6. On the other hand, Shri Lawande, learned Counsel appearing for the Respondents, has supported the impugned Order. Learned Counsel further pointed out that the Petitioner has disobeyed the Orders passed in favour of the Respondents and, as such, the learned Judge was justified to pass the impugned Order. Learned Counsel further pointed out that the Petitioner has blocked the access of the Respondents which is causing irreparable damage. Learned Counsel as such submits that no interference is called for in the impugned Order.
7. I have considered the submissions of the learned Counsel appearing for the respective parties as also perused the records. The learned Judge whilst passing the exparte Order on 02.02.2000 has, inter alia, restrained by an exparte temporary injunction the Petitioner from constructing a compound wall on the access shown in the plan at exhibit A and/or in any way putting up any obstructions on the said access. The learned Judge whilst passing the Order had also observed that in case any notice was issued to the Petitioner, the traditional access may be blocked. The Bailiff of the Court was also directed to carry out the measurements and file a report. The learned Judge whilst conducting the inquiry has also examined the Bailiff and, has come to the conclusion, that the five lines of stones were piled on the foundation only after the exparte Order was served on the Petitioner. Even assuming, such stones were existing prior to the service of the said exparte Order that by itself does not entitle the Petitioner to put up such stones after an exparte Order was served on the Petitioner not to obstruct in any manner the suit access. Hence, the findings of the learned Judge in the impugned Order that stacking such loose stones on the suit access after service of the exparte Order was in disobedience of such Order cannot be faulted.
8. Shri Lawande, learned Counsel appearing for the Respondents, does not dispute that in Exhibit A produced by the Respondents, which is referred to in the relief granted in favour of the Respondents, the width of the disputed access is 1.5 metres. Hence, the learned Judge was not justified to direct the Petitioner to remove all the five lines of stones stacked up across the foundation of the compound wall but, should have restricted such removal of five lines of stones only to the extent of 1.5 metres as shown in the plan at exhibit A. Subject to the above, I find no reason to interfere in the impugned Order.
9. Shri Menezes, learned Counsel appearing for the Petitioner, pointed out that the application for temporary injunction filed by the Respondents is still pending for hearing and seeks directions to the learned Judge to dispose such application as expeditiously as possible.
10. In the facts and circumstances of the case and taking note of the fact that such application is pending from the year 2002, wherein an exparte Order was also passed, I find it appropriate that the learned Judge should decide the said application as expeditiously as possible within one month from the date of the notice of this Court. It is clarified that the observations made herein are only for the purpose of disposing of the application under Order 39 Rule 2-A of the Civil Procedure Code and shall not influence the learned Judge whilst deciding the application for temporary injunction on merits.
11. In view of the above, I pass the following:
ORDER
(i) The impugned Order dated 21.06.2002 is modified and the Petitioners are directed to remove the five lines of stones to the extent of 1.5 metres of the suit access as depicted in exhibit A, within one week from today.
(ii) The learned Judge is directed to dispose of the application for temporary injunction within one month from date of receipt of the Order.
(iii)Rule is made absolute in the above terms with no orders as to costs.
(iv) Writ Petition stands disposed of.