1 S.A.No.357/06 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD SECOND APPEAL NO.357 OF 2006. _______________________________________________________________ Office Notes, Office | Memoranda of Coram, | Court's or Judge's orders appearances, Court's | orders or directions | and Registrar's orders | _______________________|_______________________________________ CORAM : S.V.GANGAPURWALA,J. Date : 14.12.2010. 1. This is defendants' Second Appeal. The plaintiff had filed a suit for simpliciter injunction on the ground that he is a tenant and the defendants are obstructing his possession. The trial Court decreed the suit and clamped an injunction with a rider that the plaintiff should not be dispossessed without due process of law. The plaintiff preferred an appeal. The appellate Court dismissed the appeal, confirming the judgment and decree of the trial Court. The defendant has assailed the said judgment in the present Second Appeal. 2 S.A.No.357/06 2. Mr.M.V.Deshpande, learned counsel for the appellants submitted that the suit filed by the plaintiff was not maintainable in view of rigors of Order 9 Rule 9 of the C.P.C. His earlier suit was dismissed in default and as such the fresh suit was not maintainable. As such no injunction could have been granted in favour of the plaintiff. 3. Mr.Bhavthankar, learned counsel for the Respondent submitted that order 9 Rule 9 of the C.P.C. does not preclude the plaintiff to file a fresh suit on a fresh cause of action. The suit was for simpliciter injunction and as such on fresh cause of action, the suit was always maintainable. 4. The cause of action in respect of a suit for possession is a cause of action De die in dem. Earlier suit was filed on a cause of action as stated therein, whereas the cause of action shown in the present suit is after dismissal of the earlier suit. Moreover, for applicability of Order 9 Rule 9 of the C.P.C., it is necessary that the suit is dismissed under Rule 8 of Order 9 of the C.P.C. There is nothing on record to show that the 3 S.A.No.357/06 earlier suit was dismissed U/o 9 Rule 8 of the C.P.C. The injunction that is clamped is not a blanket injunction but the appellant is only prohibited from dispossessing the Respondent without adopting due procedure of law. 5. In the result, the Second Appeal being sans substantial question of law, is dismissed. However, there shall be no order as to costs. (S.V.GANGAPURWALA,J.) Dt.14.12.2010. asp/office/sa357.06 4 S.A.No.357/06