1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR Writ Petition No. 3854 of 2009 ( Kalandarkhan Sardarkhan ..vs.. Shamrao s/o Zingraji Parve and another ) -------------------------------------------------------------------------------------------- Office Notes, Memoranda of Coram, appearances, Court's orders or directions Court's or Judge's orders and Registrar's order Mr. Bhide, Advocate for petitioner, Mr. Badhe, Advocate for respondents. Coram : R.C. Chavan, J. Dated : 12 th October, 2009 1. This petition is directed against the appellate judgment of the learned Principal District Judge, Buldhana, whereby he allowed the respondent’s Misc. Civil Appeal No.41/2009 against rejection of his application for injunction by the learned trial Judge. 2. The petitioner claims that the petitioner had been placed in possession of the property in terms of agreement dated 6-3-1993 which recites that the possession of the field had been given on that day. Both the parties had also filed affidavits 2 which the learned trial Judge considered and principally relying on the recitals in the agreement held in favour of the petitioner, who was defendant in the suit. 3. On respondent’s appeal the leaned Principal District Judge, Buldhana considered the agreement as also 7/12 extracts right from the year 1996 till 2009 and found that the field was consistently shown in the possession of plaintiff. The learned counsel for the petitioner submitted that since an application under order 39 Rule 1 of the Civil Procedure Code was required to be decided on the basis of affidavits, the learned Principal, District Judge, Buldhana should have given due weightage to the affidavits. Since both the parties had filed affidavits indicating that they were in possession of the field, the learned Principal, District Judge rightly relied on consistent revenue record in respect of the field from the year 1996 to 2009. It is not that in all cases an appellate Judge would not be entitled to interfere in exercise of discretion by the trial Judge. 4. The learned counsel for the petitioner relied on case in M/s. 3 Manoharamma Hotels and Investments Pvt. Ltd. ..vs.. M/s. Aruna Hotels Ltd. and others reported in AIR 2004 Madras 344, wherein held that “when there is an agreement failure by the respondent to perform their part of the agreement would necessitate intermeddling arrangements, it would be totally unreasonable for the respondent to attempt to eject applicant without resolving main issues in legal manner” 5. It cannot be said that the learned Principal, District Judge, Buldhana was in error in relying consistent record of evidence provided about 7/12 extracts from the year 1996-2009. Therefore, since the order is not shown perverse or thoroughly called for, no interference of writ jurisdiction is called for. Therefore, the petition is dismissed. Judge. adgokar