(1) IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AT AURANGABAD. WRIT PETITION NO. 6680 OF 2009 Smt. Neeta w/o. Sharad Chirmade, Age : 45 years, Occupation : Business, R/o. Plot No. 36, Gut No. 463/3 & 4, Model Colony, Devendra Nagar, Jalgaon, Taluka & District : Jalgaon. .. Petitioner. versus 1. Sau. Pramila w/o. Janardhan Chirmade, Age : 60 years, Occupation : Household, R/o. Plot No.3, L.I.C. Colony, Ring Road, Jalgaon, Taluka & District : Jalgaon. 2. Asst. Director of Town Planning, Jalgaon City Municipal Corporation, Jalgaon. 3. The Commissioner, Jalgaon City Municipal Corporation, Jalgaon. .. Respondents. .......................... (2) Mr. V.J. Dixit, Senior Advocate, with Mr. L.V. Sangit, Advocate, for the petitioner. Mr. S.V. Gangapurwala, Advocate, holding for Mr. P.N. Kutti, Advocate, for respondent no.1, caveator. Mr. P.R. Patil, Advocate, for respondent nos.2 and 3. .......................... W I T H WRIT PETITION NO. 6681 OF 2009 Smt. Neeta w/o. Sharad Chirmade, Age : 45 years, Occupation : Business, R/o. Plot No. 36, Gut No.463/3 & 4, Model Colony, Devendra Nagar, Jalgaon, Taluka & District : Jalgaon. .. Petitioner. versus 1. Sau. Pramila w/o. Janardhan Chirmade, Age : 60 years, Occupation : Household, R/o. Plot No.3, L.I.C. Colony, Ring Road, Jalgaon, Taluka & District : Jalgaon. (3) 2. Asst. Director of Town Planning, Jalgaon City Municipal Corporation, Jalgaon. 3. The Commissioner, Jalgaon City Municipal Corporation, Jalgaon. .. Respondents. .......................... Mr. V.J. Dixit, Senior Advocate, with Mr. L.V. Sangit, Advocate, for the petitioner. Mr. S.V. Gangapurwala, Advocate, holding for Mr. P.N. Kutti, Advocate, for respondent no.1. Mr. P.R. Patil, Advocate, for respondent nos.2 and 3. *************** CORAM : B.R. GAVAI, J. DATE : 2ND DECEMBER 2009. ORAL JUDGMENT : 1. Rule. Rule made returnable forthwith. Heard by consent. 2. Since both the petitions arise out of the same proceedings, they are heard together and are being disposed of by this common (4) judgment. 3. By way of Writ Petition No. 6680/2009, the petitioner has challenged the order dated 10th September 2009, passed by the learned District Judge-1, Jalgaon, in Miscellaneous Civil Appeal No. 27/2009, and by way of Writ Petition No. 6681/2009, the petitioner has challenged the order dated 10th September 2009, passed by the learned District Judge-1, Jalgaon, in Miscellaneous Civil Appeal No. 13/2009. 4. Miscellaneous Civil Appeal No. 13/2009 was filed by the respondent no.1 (original defendant no.1), whereas Miscellaneous Civil Appeal No. 27/2009 was filed by the respondent nos.2 (original defendant nos.2 and 3), challenging the same order i.e. dated 10th February 2009, passed by the learned Joint Civil Judge (Senior Division), Jalgaon, below Exhibit 6 in Regular Civil Suit No. 22/2009. By the said order, the learned Judge of the trial court had granted injunction in favour of the petitioner (original plaintiff), thereby restraining the defendants from interfering with the possession of kiosk erected by the respondent plaintiff. 5. The petitioner had filed a suit praying for a declaration that the kiosk erected by her on the suit site is an authorized construction since she had obtained necessary "no objection". Along with the suit, an application for temporary injunction, under Order XXXIX Rule 1 and 2 of the Code of Civil Procedure, 1908, was also filed. The learned Judge of the trial court allowed the application, as aforesaid. (5) 6. Being aggrieved thereby, the respondent no.1, who is owner of the land in question, and the Municipal Corporation, preferred appeals, as aforesaid. The appeals came to be allowed by a common order and the order of the trial court, granting injunction in favour of the petitioner, plaintiff, came to be set aside. Hence, the present petitions. 7. Though, Mr. V.J. Dixit, learned Counsel appearing for the petitioner, Mr. S.V. Gangapurwala, learned Counsel appearing for respondent no.1, and Mr. P.R. Patil, learned Counsel appearing for respondent nos.2 and 3, have addressed the court on the merits of the matter, I am not inclined to go into the same as it may prejudice the rights of the parties at the stage of trial. 8. It is a settled law, that while considering an application for grant of injunction, the court has to take into consideration three tests viz. (i) prima facie case, (ii) balance of convenience, and (iii) irreparable loss. 9. It is also an equally settled position of law, that while deciding an appeal against an order of injunction, the scope is very limited. Unless it is found by the appellate court, that the view taken by the trial court is either perverse or impossible, it is not permissible for the appellate court to substitute its views, merely because the appellate court finds that its view is more probable than the view taken by the trial court. 10. Perusal of the order passed by the trial court would reveal (6) that the learned Judge of the trial court has given sound and cogent reasons for holding that the aforesaid three tests viz. (i) prima facie case, (ii) balance of convenience, and (iii) irreparable loss, are in favour of the petitioner. By no stretch of imagination, the reasoning given by the trial court could be termed as either perverse or impossible. 11. However, it appears that the learned Judge of the appellate court, without giving any reasons, as to how the finding of the trial court is either perverse or impossible, has decided the appeal, as if deciding the suit itself. It is difficult to understand, as to how the appellate court, even in an appeal against an interlocutory order, has framed the point, whether the suit is maintainable and also decided the issue to the effect that the suit was not maintainable. I find that such an exercise, in an appeal against an interlocutory order, was wholly impermissible in law. I am of the considered view, that this was not a fit case, wherein while exercising appellate jurisdiction, against an order passed by the trial court under Order XXXIX Rule 1 and 2 of the Code of Civil Procedure, the appellate court could have reversed a well reasoned order passed by the trial court. In that view of the matter, I find that the impugned order is not sustainable in law and the same is liable to be quashed and set aside. 12. In the result, the petitions are allowed. (i) The order dated 10th September 2009, passed by the learned District Judge-1, Jalgaon, in Miscellaneous Civil Appeal Nos. 13/2009 and 27/2009, is quashed and set aside, and the order dated 10th February (7) 2009, passed by the learned Joint Civil Judge (Senior Division), Jalgaon, below Exhibit 6 in Regular Civil Suit No. 22/2009, is restored. (ii) However, taking into consideration nature of controversy, the learned Judge of the trial court is directed to expedite hearing of Regular Civil Suit No. 22/2009 and decide the same, on its own merits, preferably within a period of one year from today. It is made clear that the trial court shall not grant any unnecessary adjournments in favour of the petitioner since an order of injunction is operating in favour of the petitioner and against the interest of respondent no.1. (iii) Needless to state, that the observations made by the trial court, appellate court and this court are only concerned with the issue of, grant or otherwise, of temporary injunction and nothing observed by these three courts shall be construed to have been observed on the merits of the matter. All the points are kept open to be agitated by the rival parties. 13. Rule is made absolute in the aforesaid terms. There shall be no order as to costs. ( B.R. GAVAI ) JUDGE ......................... bgp/wp6680etc