SANDEEP BHAGVATRAO BHAKARE Vs. SANTOSH MOHANLALA DAVE

JUDGEMENT

(1.) Heard Mr. Kukday, learned Counsel for the petitioner, Mr. Deol Pathak, learned Counsel for respondent nos. 1 and 2, Mr. Hazare, learned Counsel for respondent no.3 and Mr. Ukey, learned Additional Government Pleader for respondent nos. 5 and 6. Rule. Rule made returnable forthwith. Heard finally with the consent of the learned Counsel for the rival parties.

(2.) The writ petition raises a challenge to the order passed by the learned Mamlatdar, in proceedings initiated before him under the provisions of Sec. 5 of the Mamlatdar's Courts Act, 1906 ("the M.C. Act, 1906", for short, hereinafter), whereby by an order dtd. 10/6/2021, temporary interim injunction was granted by him on the application filed by the respondent no.1, against the petitioner, directing the petitioner, to make open the way. A Revision under Sec. 23 of the M.C. Act, 1906, came to be filed by the present petitioner, which came to be dismissed by the order dtd. 12/7/2021, maintaining the interim order dtd. 10/6/2021.

(3.) Mr. Amit Kukday, learned Counsel for the petitioner, raises an interesting question, by contending, that under the provisions of the M.C. Act, 1906, the Mamlatdar does not have any power to grant any interim relief of any nature whatsoever. The powers conferred upon the learned Mamlatdar, only empower him to decide the issue finally upon inspection of the disputed property and recording such evidence as may be presented before him by the respective parties. He places reliance upon the absence of a provision in the Mamlatdar's Courts Act to buttress his contention by submitting that it was never the intention of the legislature, to empower the Mamlatdar with powers to pass interim orders and therefore in absence of such powers, both the impugned orders, are clearly without jurisdiction. Mr. Kukday, learned Counsel for the petitioner places his reliance upon the judgment of this court, in Sanjay s/o Dinkar Kulkarni V/s Shankarappa s/o Ganappa Pasarakar, passed in Civil Revision Application No.244/1975, dtd. 7/8/1975, wherein a learned Single Judge of this Court has dealt with this issue, and come to the conclusion that the powers under Order XXXIX Rule 2 of C.P.C. or for that matter the powers to pass any temporary or interim injunction are not available to the learned Mamlatdar in proceedings initiated before him under Sec. 5 of the M.C. Act, 1906, in view of which, he submits, that the impugned orders ought to go.