1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR Appeal against Order No.81 of 2010 (Vinod Keshaorao Kharate and another v. Vitthalrao Marotrao Raut and another) Office Notes, Memoranda of Coram, appearances, Court's orders or directions Court's or Judge's orders and Registrar's order Shri Anand S. Deshpande, Advocate for Appellants. Shri S.P. Deshpande, Advocate for Respondent No.1. Coram : R.K. Deshpande, J. Dated : 20 th October, 2010 This appeal against order has been preferred by the original defendants challenging the order dated 7-5-2010 passed by the learned District Judge-1, Darwha, below Exhibit 5 in Regular Civil Appeal No.31 of 2009. The application filed by respondent No.1/plaintiff for grant of temporary injunction pending the decision of the appeal, has been allowed and the appellants/defendants are restrained from causing any sort of obstruction and interference in the respondent/plaintiff’s possession and cultivation of the suit field bearing Gat No.243, admeasuring 2 H, 40 R, situated at Village Hatola. Hence, the defendants are before this Court. The Appellate Court has recorded the finding that during the pendency of the suit, temporary injunction was operating in favour of the plaintiff, restraining the defendants from causing 2 any sort of obstruction and interference in the plaintiff’s possession and cultivation of the suit field. The suit has been dismissed by the Trial Court. The appellants/defendants have filed a counter-claim. The same has also been rejected by the Trial Court. The Appellate Court has recorded the finding that the plaintiff has made out a prima facie case for grant of injunction. The balance of convenience lies in favour of the plaintiff and if the order of injunction is not passed, it will be the plaintiff, who will suffer an irreparable loss. The finding is also recorded that the plaintiff is in possession of the suit field and the suit field is under cultivation. The further finding is also recorded that the defendants have no concern whatsoever with the suit field and they have not produced on record any document showing their title, possession, interest or share in the suit field. Hence, if the injunction is granted, the question of causing any irreparable loss to the defendants does not arise. The challenge in the instant appeal is that the suit has been dismissed by the Trial Court and hence no prima facie case was made out. The Appellate Court has, therefore, committed an error in passing an order of injunction. The appellants/defendants claim that they are in possession of the suit field and if the injunction granted in favour of the respondent/plaintiff is maintained, it would cause an irreparable loss to them. It is not in dispute that the order of injunction is operating during the pendency of the suit. Though the suit as well as the counter-claim have been dismissed, the finding is recorded by the Appellate Court that the defendants have failed to established their title, possession or interest in the suit field. The Appellate Court has also recorded the finding that prima facie 3 case is made out by the plaintiff for grant of injunction. The order of temporary injunction passed by the Trial Court on the finding that the plaintiff is in possession of the suit field. After dismissal of the suit, it is not the case of the defendants that they have taken the possession of the suit field. The Appellate Court has also recorded the finding on prima facie assessment of the case that the plaintiff, who has purchased the suit field, will be deprived from the enjoyment of cultivation of the suit field, if the injunction pending the decision of the appeal is not granted. In view of this, no fault can be found with the findings recorded by the Appellate Court. In the result, there is no substance in the instant appeal and the same is, therefore, dismissed. However, the Appellate Court is directed to expedite the decision of the appeal. Judge pdl