Bombay High Court
DAVJI MARUTI BHANDWALE DIED THROUGH HIS LEGAL HEIRS A D BHANDWALE AND ORSversusSHAIKH JAFAR SHAIKH IBRAHIM AND ORS
- Disposal
- DISPOSED OFF
- Bench
- S G CHAPALGAONKAR
Holding
The order granting police aid was quashed because the petitioners were not brought on record nor given notice, violating natural justice.
Summary
The petitioners, legal heirs of a deceased defendant, challenged an order dated 12.03.2026 that granted police protection to enforce a temporary injunction on suit property without giving them notice or bringing them on record in the underlying partition suit. The trial court had earlier granted a temporary injunction restraining the plaintiffs from alienating or constructing on the property, and later allowed police aid to enforce it. The petitioners argued that an injunction binds legal heirs only after they are joined as parties and served notice, invoking principles of natural justice. The court held that the trial court erred by granting police aid without notice and without the heirs being formally joined, and therefore quashed the impugned order. The matter was remitted to the trial court for fresh consideration with an opportunity for the petitioners to be heard.
Issues considered
- Whether a temporary injunction can be enforced against the legal heirs of a deceased defendant without them being brought on record in the suit.
- Whether police protection can be granted to implement an injunction without serving notice to the affected legal heirs.
- Whether the trial court's order violated the principles of natural justice.
Legislation cited
- Code of Civil Procedure, 1908 — s. Order 12 Rule 32
Subjects
- injunction
- police protection
- natural justice
- legal heirs
- temporary injunction
- civil procedure
- order quashed
Judgment
2026:BHC-AUG:18443
wp-4171-2026.odt
(1)
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 4171 OF 2026
1) Davji Maruti Bhandwale
Died through his legal heirs
1A) Adinath Davji Bhandwale
Age 45 years, ocu. Agri.
R/o Barshi Naka Near
Gas Agency, Beed
Tq. And District Beed
1B) Ganesh Davji Bhandwale
Age 40 years, ocu. Agri.
R/o Barshi Naka Near
Gas Agency, Beed
Tq. And District Beed
1C) Janabai w/o Davji Bhandwale
Age 50 years, ocu. Agri.
R/o Barshi Naka Near
Gas Agency, Beed
Tq. And District Beed. ..Petitioners
VERSUS
1) Shaikh Jafar Shaikh Ibrahim
Age 52 years Occu Labour
R/o Mominpura Mohamadiya
Colony Beed Tal. and Dist. Beed.
2) Shaikh Mustafa Shaikh Ibrahim
Age-50 years Occu-Labour
R/o-as above.
3) Shaikh Rafiq Shaikh Ibrahim
Age-48 years Occu- Labour
R/o as above.
4) Shaikh Yakub Shaikh Ismail
Age-55 years Occu- Labour
R/o-as above!
5) Shaikh Shakil Shaikh Ismail
Age-52years Occu- Labour
R/o-as above!
wp-4171-2026.odt
(2)
6) Shaikh Khamar Shaikh Ismail
Age-50 years Occu- Labour
R/o-as above.
7) Nemulal s/o Maroti Bhandwale
Age 81 years, ocu. Agri.
R/o Barshi Naka Near
Gas Agency, Beed
Tq. And District Beed. ..Respondents
...
Advocate for Petitioners : Mr. A.S. Deshmukh
Advocate for Respondent Nos.1 to 6 : Mr. G.K. Naik Thigle h/f Mr.
A.B. Lokhande
...
CORAM : S. G. CHAPALGAONKAR, J.
DATED : APRIL 23, 2026
JUDGMENT :-
1. Rule. Rule made returnable forthwith and heard finally
with consent of parties.
2. Present petition takes exception to order dated
12.03.2026 passed by Civil Judge Junior Division, Beed below
Exhibit-159 in R.C.S. No. 374 of 2012, thereby granting police
protection in favour of respondents/plaintiffs.
3. Mr. A.S. Deshmukh, learned advocate appearing for
petitioners submits that respondent nos.1 to 6/original plaintiffs filed
suit for partition and separate possession before Civil Judge Junior
Division, Beed. An application was moved below Exhibit-22 for grant
of temporary injunction alleging that suit property has gone under
multiple transactions without lawful authority. Therefore, prayer was
made for injunction not to alienate or construct over suit property.
The application was rejected by Trial Court. However, in
wp-4171-2026.odt
(3)
Miscellaneous Civil Appeal No. 97 of 2012, learned District Judge
granted temporary injunction to the extent that
respondents/defendants should not alienate suit property and change
nature thereof till disposal of suit on its merit. Thereafter, respondents
filed an application below Exhibit-140 seeking injunction against
defendants from raising construction over suit property and also
sought police aid for implementing injunction order. On 07.05.2025,
the Trial Court allowed said application and directed defendants not
to change nature of suit property in any manner whatsoever and not
to construct over suit land till disposal of suit on merit. Later on,
plaintiffs filed one more application at Exhibit-159 seeking police aid
for implementation of temporary injunction order dated 21.08.2013
passed by District Judge and order dated 07.05.2025 passed below
Exhibit-140. The said application came to be allowed vide impugned
order dated 12.03.2026. The Senior Police Inspector at Police Station
Peth Beed is directed to provide necessary police protection/police aid
to the plaintiffs in implementation of injunction order and stop illegal
construction on suit property.
4. Mr. A.S. Deshmukh, learned advocate appearing for the
petitioners submits that during pendency of suit, Davji Maruti
Bhandwale/defendant no.2 expired. The plaintiffs filed an application
for bringing his legal heirs on record. The said application is pending
adjudication. At this stage, application Exhibit-159 was filed for police
wp-4171-2026.odt
(4)
aid wherein petitioners who are legal heirs of deceased defendant-
Davji Bhandwale were shown as respondents. Without issuing notice
to petitioners, Trial Court allowed application Exhibit-159 granting
police aid for implementation of injunction order.
5. Mr. Thigle, learned advocate appearing for
respondents/plaintiffs submitted that injunction order passed against
deceased defendant would bind his legal heirs. The injunction granted
against defendant restraining him from raising construction over suit
property, on death of defendant can be enforced against his son as his
legal representatives, by procedure under Order 12 Rule 32. In
support of this contention, he relied upon observations of Hon’ble
Supreme Court in case of Prabhakara Adiga Vs. Gowri and Others
reported in (2017) 4 SCC 97, and observations of this Court in case of
Nirabai J. Patil Vs. Narayan D. Patil reported in 2004 (1) Mh.L.J.
1058.
6. Having considered submissions advanced by learned
advocates appearing for respective parties, it can be observed that
there is no dispute that in R.C.S. No.374 of 2012, temporary
injunction has been granted by learned District Judge by order dated
21.08.2013. However, now defendant no.2, Davji passed away. An
application for bringing his legal heirs in suit is still pending. The
record indicates that plaintiffs have filed application for grant of
police protection below Exhibit-159 to implement injunction order,
wp-4171-2026.odt
(5)
wherein petitioners/legal heirs of defendant no.2 are shown as
respondents, but Trial Court never issued notice to them and
proceeded to pass impugned order granting police protection.
7. It is trite that injunction order passed against defendant
would bind his legal heirs. However, unless legal heirs are brought on
record of suit and they are served with notice of independent
application for grant of police aid, no such orders can be passed. In
present case, petitioners are neither brought on record of suit as legal
heirs nor they were served with notice of application Exhibit-159. In
this background, order granting police aid cannot be countenanced
for want of adherence to principles of natural justice. The grant of
police protection depends upon various factors. It is an extraordinary
relief and depends upon conduct of parties. The petitioners cannot be
clamped with such order without giving notice or opportunity of
hearing. On this count only impugned order deserves to be quashed
and set aside and matter needs to be relegated back to Trial Court for
fresh consideration after giving an opportunity of hearing to
petitioners.
8. In result, following order is passed :
ORDER
(i) Writ Petition is partly allowed.
wp-4171-2026.odt
(6)
(ii) Impugned order dated 12.03.2026 passed below Exhibit-159 in
R.C.S. No. 374 of 2012 by Civil Judge Junior Division, Beed is
quashed and set aside.
(iii) The parties are relegated before Trial Court for appearance on
29.04.2026.
(iv) The petitioners shall file their reply/say to application
Exhibit-159 within a period of 7 days of appearance and Trial Court
shall pass fresh order after hearing parties within 7 days thereafter.
(v) Rule is made absolute in above terms.
(S.G. CHAPALGAONKAR, J.)
Mujaheed//
Checking your session…