-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION Writ Petition No.9285 of 2007 1. Sunil Babasaheb Patil and another ..Petitioners vs. 1. Dhondiba Balu Shirtode and anothere ..Respondents Shri S.S.Kulkarni for petitioners Shri Vishwanath Talkute for respondents. CORAM: S.C.DHARMADHIKARI J. CORAM: S.C.DHARMADHIKARI J. CORAM: S.C.DHARMADHIKARI J. 28th March, 2008 8th March, 2008 8th March, 2008 P.C. P.C. P.C. 1. This writ petition is directed against the order passed by the Trial Court below Exh.5 in Reg.Civil Suit No. 676 of 2007. The order dated 16th October, 2007 reads thus; "1. Application is allowed. 2. Temporary injunction is granted in favour of the plaintiffs and thereby defendants or any person acting on behalf of them are hereby temporary restrained from disturbing the possession of plaintiffs over the suit field, till decision of suit. -2- 3. No ordetr as to costs." 2. This order was challenged by filing Misc. Civil Appeal before the lower Appellate Court and the lower Appellate Court by the impugned order has dismissed the appeal. 3. I am informed that the petitioners are the original appellants/defendants to the civil suit whereas the respondents to the present petition are the original plaintiffs. 4. The lower Appellate Court while upholding the order of the Trial Court has referred to the "Iisar pavati" dated 30th November, 1996 and the registered agreement for sale dated 29th March, 1997. Reference to these documents is to be found in paragraph 12 of the order of the lower Appellate Court. 5. The argument in support of this writ petition is that the original plaintiffs have suppressed from the Court the fact that their deceased father had executed an Isar Pavati dated 30th November, 1996 which speaks of the consideration of Rs.1,91,000/- out of which the -3- amount allegedly of Rs.1,80,000/- had been paid at the time of executing the receipt and that the possession of the suit land has been delivered to original defendant no.2. There is a registered agreement of sale dated 29th March, 1997 which evidences this fact coupled with the receipt of 30th November, 1997. The deceased (father of the plaintiffs) Babu expired on 16th January, 2004. The learned judge of the lower Appellate Court has relying upon mutation entry no.273 has held that the names of the original plaintiffs have been entered in the record of rights and they continue till date. The argument before me is that if the documents are evidencing the factum of possession and that physical possession has been handed over by the deceased father is set down therein, then, not mentioning these facts in the plaint amounts to suppression and on that ground alone, the application for interim injunction should have been dismissed. 6. That apart, reliance is placed upon several receipts which evidence payment by sugar factory and it is contended by Shri Kulkarni that the receipt would also evidence the fact that the lands are being cultivated by the original -4- defendants or in any event are in their possession. Reliance is also placed upon a compilation of documents which was handed over during the course of arguments. 7. On the other hand Shri Talkute appearing for the original plaintiffs has contended that there is no suppression of facts in as much as the plaint has been amended once and even now, an amendment application is pending. The amendment application specifically refers to the documents which are mentioned in para 12 of the Appellate Court orders. Further, based upon said documents appropriate reliefs are also claimed. Additionally, the affidavits were filed and, therefore, there is no question of any suppression. 8. In my view, it would not be fair, just and proper to express any opinion on the contents of the documents.It is clear from the record as it stands today that the plaint does not refer to any of these documents nor any relief claimed based upon the contents thereof. In such circumstances and when the amendment application is pending, interest of justice would be subserved if the orders under challenge are set -5- aside and liberty is granted to the original plaintiffs to apply for interim injunction afresh after the plaint is allowed to be amended. All contentions with regard to the amendment application so also on merits are expressly kept open. 9. However, considering that the Trial Court has passed the order on 16th October, 2007 and the said order has been affirmed by the lower Appellate Court and further amendment application being pending, interest of justice would be subserved if the order of the Trial Court dated 16th October, 2007 is directed to be treated as ad-interim injunction and clarifying further that merely because the ad-interim injunction is granted in terms of the order passed by the Trial Court does not mean that this Court has accepted the case of the original plaintiffs being in possession of the suit land. That is without prejudice arrangement which has been made so as to facilitate the original plaintiffs in moving for amendment of the plaint and upon amendment being granted to apply for further reliefs in terms thereof. While granting such liberty, the rights and contentions of original defendants are also -6- protected in as much as it is clarified that the observations of the Court below in the impugned order would not in any manner influence the decision of the Trial Court if the application is moved afresh after the amendment application is granted. The Trial Court to apply its mind independently and afresh without being influenced by any of these observations and the ad-interim arrangement made by this Court. 10. For ensuring that the original plaintiffs take steps to amend the plaint expeditiously, it is directed that their amendment application shall be placed before the Trial Court on 7th April, 2008 and the Trial Court to endeavour and dispose of the same as expeditiously as possible and within a period of four weeks from 7th April, 2008. Till amendment application is granted the order dated 16th October, 2007 shall operate as an ad-interim order. Even the amendment application should be considered without being influenced by this ad-interim arrangement. Needless to state that if the amendment application is rejected ad-interim order stands vacated forthwith. If amendment application is granted the Trial Court to permit the original plaintiffs to apply for interim -7- injunction in terms of the amended pleas and if such application is made ad-interim order to continue till consideration thereof. If within the time stipulated by the Trial Court no application is made, ad-interim injunction would come to an end automatically. 11. As far as the amount which is received by the sugar factory is concerned, the said sugar factory is at liberty to deposit the amount with regard to the sugarcane that has been dispatched to it and received and such deposit can be made in the Trial Court. The deposit would be without prejudice to the rights and contentions of both sides and the deposit would then abide by further directions of the Trial Court. In so far as standing sugarcane crop is concerned both sides are at liberty to make the application to the Trial Court and Trial Court shall pass appropriate orders when it is considering the application for amendment of the plaint. 12. Petition is disposed of. (S.C.DHARMADHIKARI J.) (S.C.DHARMADHIKARI J.) (S.C.DHARMADHIKARI J.)