1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 893 OF 2010 ANIL MAROTIRAO SURWASE ..PETITIONER VERSUS NAMDEO VITHAL KENDRE AND ORS ..RESPONDENTS ... Shri F.R.Tandale. Advocate for the petitioner. ... CORAM : S.B.DESHMUKH,J. Dated : 23.2.2010 PER COURT :- 1. Heard. 2. This Writ Petition is filed by original defendant No.1 challenging the judgment and order passed by the first appellate Court below Exhibit 7 dt. 30.10.2009 in RCA No.48 of 2008. 3. Learned counsel for the petitioner submits that respondent No.1 (plaintiff) had filed RCS No.6 of 2006 on 30.6.2006 for declaration and perpetual injunction in the court of learned Civil Judge S.D.Majalgaon, District Beed. Copy of the plaint is on record at Exhibit "D". The suit was followed by an application for temporary injunction Exhibit 5 under Order XXXIX Rule 1 and 2 of CPC. 2 4. Defendant No.3 appeared in the suit and filed his written statement at Exhibit 18. 5. The trial Court heard the parties and rejected the application for temporary injunction on 23.6.2006. According to learned counsel for the petitioner, in this order, the trial Court has made some observations against the plaintiff. On my query, learned counsel for the petitioner submits that this order has attained finality for want of challenge before the appropriate Court. 6. The trial Court dismissed the suit on 15.2008. Copy of the judgment and order is on record at Exhibit "H". 7. Said judgment and order of the trial court was subjected to challenge before the first appellate Court by the plaintiff. The petitioner also filed an appeal under Section 96 of the CPC being aggrieved by part of the decree passed by the trial Court. The appeal filed by the petitioner is registered as RCA No.48 of 2008. Petitioner filed application Exhibit 7 in the said appeal. Copy of the application is on record. By the said application, temporary injunction was sought against respondent No.1 (plaintiff) restraining him from obstructing the peaceful possession and enjoyment of the petitioner over the suit land till disposal of the appeal. Said application came to be rejected by the first appellate Court, which 3 order is subjected in the present writ petition, as said earlier. 8. Learned counsel for the petitioner took me through the judgment of the trial Court. He points out the findings recorded by the trial court on various issues. It has been submitted that the findings recorded on issue Nos.1 to 4 are inconsistent. 9. The judgment and decree passed by the trial Court is subjected to two appeals, one by the plaintiff and another by defendant No.3 before the first appellate Court. At this stage, it would not be proper for this Court to record any findings or make any observations on the judgment of the trial Court since two appeals are pending before the first appellate Court. 10. This Court is dealing with the petition challenging the inter locutory order during pendency of the appeals in the first appellate court. From the impugned order, it is clear that the first appellate Court reached a conclusion that there is no prima facie case and balance of convenience in favour of the petitioner. The first appellate Court refused to grant temporary injunction against the plaintiff as prayed for. 11. I have given due consideration to the submissions. In my view, there is no case for invocation of extra ordinary jurisdiction of this Court. I am inclined to dismiss the writ petition. However, it is made 4 clear that the first appellate Court shall decide the two appeals pending before it, in accordance with the provisions of law and after hearing both the parties without getting influenced by the order passed by the first appellate court below Exhibit 7. 12. In the result, Writ Petition stands dismissed in limine. No order as to costs. ( S.B.DESHMUKH, J.) ... akl