1 wp10625.10 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD WRIT PETITION NO. 10625 OF 2010 _____________________________________________________________________ Office Notes, Office | Memoranda of Coram, | appearances, Court's | Court’s or Judge’s orders orders or | directions and | Registrar's orders | _____________________________________________________________________ Mr. Milind M. Patil, Advocate for the petitioner. Mr. M.P. Kale, Advocate for respondents. Heard Advocate Mr. Milind Patil for petitioner and Advocate Mr. M.P. Kale for respondents. 2. Advocate Mr. Patil points out that trial Court did not grant temporary injunction to respondent-plaintiff and in Misc. Civil Appeal, Appellate Court has granted it. He, therefore, requested Court to look in to controversy in more depth, so as to enable him to demonstrate the injustice caused. Contention is, the trial Court relied upon earlier final adjudication reached in the month of January, 2010 in Regular Civil Appeal No. 273/2008, wherein trial Court dismissed suit of present respondent holding that he has failed to prove his possession. Learned counsel states that pendency of Regular Civil Appeal challenging 2 wp10625.10 that judgment can not be the answer at prima facie stage to over reach that finding. The finding of absence of possession of respondent-plaintiff, therefore ought to have been accepted even by the Appellate Court. He further states that though the present petitioner is not party in Regular Civil Suit No. 273/2008, he has been placed in possession in view of the registered sale deed in his favour. The appellate Court has ignored the said sale deed and has given undue importance to the unregistered lease deed and documents produced by the present respondent. He states that those documents are already looked into while deciding the Regular Civil Suit No.273/2008. 3. Advocate Mr. Kale on the other hand supports impugned order. 4. Scope of consideration in Misc. Civil Appeal in such matter is well known. Challenging such consideration, the present matter has been filed invoking jurisdiction under Article 226 and 227 of the Constitution of India. 5. Appellate Court has considered the Regular Civil Suit No. 273/2008, it's impact and also the arguments being advanced before this Court by Advocate Patil, it has given its reason for not accepting those arguments. Not only this, it found respondent not in position to point out how he got possession from the plaintiff. 3 wp10625.10 6. Thus, the respondent, who is not party to Regular Civil Suit No. 273/2008 claims to be placed in possession by plaintiff and at the same time, he attempted to support the findings reached in earlier suit that the respondent- plaintiff was not in possession. 7. I do not find any jurisdictional error or perversity in the approach of the Appellate Court. 8. One of the contentions of Advocate Mr. Patil is on the strength of such interim order, the respondent will enter the possession forcibly and then prolong the litigation. Looking to the fact that in Regular Civil Suit No. 273/2008, there is already finding against the respondent- plaintiff, I am inclined to expedite the hearing in Special Civil Suit No. 55/2010. The Court of Joint Civil Judge, Senior Division, Parbhani shall decide it, as early as possible and in any case within a period of one year from the date of communication of this order to it. 9. With these observations and directions, the Writ Petition is disposed of. No costs. (B.P. DHARMADHIKARI) JUDGE. 10.01.2011 gas/wp10625.10