1 WP 3956........2011 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 3956 OF 2011 WITH WRIT PETITION NO. 3957 OF 2011 Office Notes,Office Memoranda of Coram,appearances, Court's orders or directions and Registrar's orders Court's or Judge's orders Mr.V.D.Hon,Advocate for the Petitioner. Mrs.R.K.Ladda, Asstt.Govt. Pleader for State. Mr. V.J.Dixit, Sr. Counsel instructed by Mr.L.V.Sangit, Advocate for Resp.nos.2,7,11 & 21. .......................... CORAM : S.V. GANGAPURWALA, J. DATE : 09/06/2011 PER COURT : 1. Heard the learned counsel for the respective parties. 2. The respondents in both these Writ Petitions have filed Suit challenging the notice issued by the petitioner for removal of their construction. The trial court dealing with the said suits, did not grant any exparte ad-interim injunction and issued show cause notice. The respondents aggrieved thereby, filed separate Misc. Civil Appeals before the District Court on the ground that the trial court 2 WP 3956........2011 committed an error in not granting exparte ad- interim injunction. Initially, the District Court granted ad-interim injunction. Thereafter, after hearing the petitioner, allowed the Appeals filed by the present respondents, granted ad-interim injunction pending decision of Exh. 6 by the trial Court. The lower appellate Court dealing with the Misc. Civil Appeals passed the following operative order : “ ORDER 1. Appeal is allowed. 2. The impugned order passed below Exh. 6 by the learned Civil Judge (S.D.) in R.C.S. No. 139 of 2011 is set aside. 3. It is hereby ordered below Exh. 6 in R.C.S. No. 139 of 2011 that defendant no. 1, its agents, servants, assignees, etc. are hereby restrained by ad-interim injunction from interfering with the plaintiffs peaceful possession over the suit property. 4. Issue notice to the defendants to show cause why ad-interim injunction granted on Exh. 6 should not be confirmed. 5. E.P. & S.B. Allowed. 6. Plaintiffs to comply Order 39 Rule 3 of Civil Procedure Code. 3 WP 3956........2011 7. Next date, as given in suit by trial court ”. 3. The said order is assailed in the present Writ Petition. 4. Mr. V.D.Hon, the learned counsel for the petitioners submits that the matter is subjudiced before the Apex Court and the Apex Court has granted liberty to the petitioner to take action in respect of the encroachers and the construction coming in the road widening. The District Court while passing the impugned order has dwelled on the aspects, which were not relevant and were not in consonance with the order passed by the Apex Court and the High Courts in various matters. According to the learned counsel, the petitioner is engaged in work of public welfare and such an injunction could not have been clamped. The District Court travelled beyond its jurisdiction in making observations as is spelt out in the impugned order. The learned counsel contends that in fact nothing is left to be adjudicated and the observations made by the District Court are per se and ex-facie erroneous. 5. Per contra, Mr, V.J.Dixit, the learned Sr. Counsel for the respondents submits that even the 4 WP 3956........2011 High Court has come to the conclusion in the Writ Petition that the present respondents can not be called as an encroachers. No error can be found in the order passed. 6. From the perusal of the order, it is manifest that vide the impugned order, the District Court has only granted ad-interim injunction. Clause 4 and 5 of the operative order substantiates the same. It is for the trial Court where the Suit and the application Exh. 6 are pending to give a dictum on the same. The injunction that is clamped is merely ad-interim one and the trial Court is required to deal with the matter on merits. I do not see any propriety in interfering with the said order at this stage. The petitioner has an opportunity to contest the application Exh. 6 before the trial court. The petitioner shall file its say before the trial court, if not already filed on the next date itself. The trial Court shall decide application Exh. 6 within the period of one ( 1 ) month after the filing of the Say. The trial court shall decide the application Exh. 6 independently on its own merits considering the averments made by the plaintiff and the defendant without being impressed or influenced by the observations of the District Court as the same were made while granting ad-interim order. 5 WP 3956........2011 7. Mr. Hon, the learned counsel for the petitioner states that both the Suits are pending in different Courts. The petitioner may take such steps if so advised for clubbing the same. 8. In the result, the Writ Petitions are disposed off with above directions. No costs. [ S.V. GANGAPURWALA,J. ] KNP/WP 3956.........2011