SANJAY SHRIKISHANJI SOMANI Vs. VISHNUPANT SHANKARRAO SHAHANE

JUDGEMENT

(1.) This petition challenges the order passed by the learned Principal District Judge, Parbhani below Exhibit-1, Exhibit-4 and exhibit-44 in Misc. Civil Appeal No. 39 of 2006.

(2.) A question, to be decided in this writ petition, is the power and jurisdiction of learned Principal Disirict Judge, while considering Miscellaneous civil Appeal under Order XLIII, Rule 1 (r) of the Code of 1908.

(3.) The Petitioners are plaintiffs and the respondent is defendant in Special civil Suit No. 23 of 2005. Parties hereinafter are referred to their status as plaintiffs and defendant in Special Civil Suit No. 23 of 2005. The plaintiffs seek specific performance of contract, decree of mandatory injunction and perpetual injunction. The subject-matter of the suit is agricultural land bearing Gat No. 109, admeasuring 3 Hectares 45 Ares, situated at village Sailu, district Parbhani. It is pleaded by the plaintiffs that they are in actual and physical possession of the suit property since 11th April, 1996 pursuant to the contract of sale dated 11th april, 1996 and by way of part performance. Plaintiffs had filed an application below Exhibit-5 seeking temporary injunction restraining the defendant, his agent, servant or anybody claiming on his behalf, from obstruction or interfering in actual physical possession of the plaintiffs, in relation to suit property. This application Exhibit-5 seems to have been filed on 29th June, 2005. The trial court, after hearing the parties, rejected the application Exhibit-5 by order passed on 29th July, 2006. This order, below Exhibit-5, rejecting the prayer for temporary injunction, in Special Civil Suit No. 23 of 2005, is challenged by the plaintiffs, by filing Misc. Civil Appeal No. 39 of 2006 in the Court of learned district Judge at Parbhani. The defendant entered appearance in the said miscellaneous appeal. Learned Principal District Judge, Parbhani, during the pendency of Misc. Civil Appeal No. 39 of 2006, passed an order below Exhibit-1 on 16th March, 2007, calling the record and proceeding from the lower Court for impounding of the document in question i. e. the contract of sale (Isar Pawati) dated 11th April, 1996. The learned District Judge, thereafter, after hearing the parties, passed an order below Exhibit-1 on 20th March, 2007 holding that the plaintiffs' claim for perpetual injunction is based on contract of sale (Isar Pawati) and, therefore, the said document needs to be impounded. Unless deficit stamp duty and penalty is paid, learned Judge postponed delivery of judgment since arguments were already heard. The learned District Judge, Parbhani, on the same date i. e. 20th March, 2007, also passed an order impounding the document and directing the plaintiffs to deposit stamp duty of Rs. 7,190/-, penalty amount of rs. 14,380/-, totalling to amount of Rs. 21,570/ -. These three orders, passed by the learned Principal District Judge, Parbhani are subject-matter of the present writ petition.