1 CA 13225.2010 in SA 289.2010 FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CIVIL APPLICATION NO. 13225 OF 2010 IN SECOND APPEAL NO. 289 OF 2010 Office Notes, Office Memoranda of Coram, appearances, Court's orders or directions and Registrar's orders Court's or Judge's Orders Mr. M.M.Bhokarikar, Advocate for the applicants. ............................... CORAM : S.V. GANGAPURWALA, J. DATE : 03/12/2010 PER COURT : 1. Vide the present Civil Application, the applicant seeks modification to the Order passed by the learned Single Judge of this Court on 10/6/2010, whereby the application of the present applicant for injunction was decided after hearing both the parties. 2. Mr. Bhokarikar, the learned counsel for the applicants submits that at the time when the said order was passed, the record and proceedings were not received and as there was ensuing Mansoon, the petitioner could not stay and at that time it was 2 CA 13225.2010 in SA 289.2010 not necessary for the applicant to have way of 6 ft. - 8 ft. According to the learned counsel, it is not possible for the applicant to carry on his agricultural operations by using 2 ft. wide road in as much as he can not take the agricultural equipments and the bullock-cart from the said 2ft. Wide road. Mr. Bhokarikar, learned counsel submits that this Court can modify the Order on additional grounds. For the said purpose, the learned counsel relies on the Judgment of the Apex Court in the case of Jute Corporation of India Ltd. V/s Commissioner of Income Tax and another reported in AIR 1991 Supreme Court – 241. 3. I have gone through the Order passed on 10/6/2010. The said order was passed by this Court after hearing the learned counsel for both the parties. This Court while passing the said order, has taken into consideration the depositions of the witnesses and thereafter has allowed the applicant to use 2ft. Wide road from the boundary bund of G.No. 1302. The Court has taken into consideration the Judgments passed by both the Courts and the appreciation of evidence for coming to that prima facie conclusion. The present application would be in the nature of review. This Court does not sit as an appellate authority while entertaining the application for modification. There are no change circumstances. Whatever material was available, was available at that time 3 CA 13225.2010 in SA 289.2010 also. This Court was prima facie evaluating the Judgments passed by the Courts below and thereafter had passed the said order. The Judgment of the Apex Court in the case of Jute Corporation of India referred supra, is in context of power of appellate authority, wherein it was laid down that the appellate authority can consider the additional grounds and modify the assessment also. No doubt, under Order XXXIX Rule 4 of the Code of Civil Procedure, the powers of modification are available, but then that is only permissible in the case of change circumstances. In the present case, there are no such change circumstance initiating in variation of the order. 4. In light of the same, no orders are required to be passed in the present Civil Application and the Civil Application is disposed of. 5. Mr. Bhokarikar states that the paper book is already supplied. Taking into account the nature of the dispute, fix the present Appeal for final hearing in the week commencing from 17/1/2011. [ S.V. GANGAPURWALA ] JUDGE knp/CA 13225.2010 in SA 289.2010