1 wp 7600-2010.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 7600 OF 2010 Shri Rajendra Bapuso Chougle & Anr. ..Petitioners vs. Annasahebe Kondiba Chougle ..Respondent Mr.Sandeep Koregave for the Petitioners. Mr.abhijit M. Adagule for the Respondent. CORAM : B.R. GAVAI, J DATED : JANUARY 28, 2011. P.C. : 1 By way of present petition, the petitioner challenges concurrent order dated 13th July, 2010 vide which the application filed by the present petitioner for grant of temporary injunction and the order dated 27th August, 2010 vide which the appeal is dismissed. 2 The petitioner-plaintiff has filed a suit for declaration and injunction. Along with suit, 2 wp 7600-2010.sxw an application under Order 39 Rule 1 and 2 of the CPC claiming an order of injunction directing the defendant to demolish the structure made by him and further from not carrying out the construction on the alleged encroached area was filed. Same was rejected. The appeal carried out thereunder was also dismissed. 3 Shri Koregave, learned Counsel for the petitioner submits that since the petitioner has made out a prima facie case, the trial court ought to have granted interim injunction as sought for. The learned Counsel relied on the judgment of the learned Single Judge of this Court in the case of Sanjay s/o. Shrikishanji Somani & Anr. vs. Vishnupant s/o. Shankarrao Shahane, reported in 2007(6) ALL MR 863. 4 Shri Adagule, learned Counsel appearing for the respondent, on the contrary, submits that both the courts have concurrently held that the 3 wp 7600-2010.sxw petitioner has not made out any case and therefore, petition deserves to be dismissed. 5 The trial court as well as the appellate court upon perusal of the material placed on record has found that the main case of the petitioner was that the plaintiff had encroached upon his land. It was also the case of the petitioner that the defendant had carried out the construction without permission of the Gram Panchayat. The learned trial court as well as the appellate court found that unless the petitioner by leading cogent evidence establishes that the respondent-defendant had encroached upon his land, the injunction as sought could not be granted. On the basis of material on record, it was found that the petitioner has failed to prima facie satisfy that such an encroachment was carried out. While considering an application for grant of injunction, the Courts are required to apply the tests of prima facie case, balance of convenience 4 wp 7600-2010.sxw and irreparable injuries. Applying these tests, it has been concurrently found that if, at this stage, without even coming to the conclusion that the defendant's construction is unauthorised, the same be directed to be demolished, it would cause irreparable injury to the defendant. The scope of interference in the extra ordinary jurisdiction under Article 227 of the Constitution of India is limited. Unless it is found that the view taken by the court is either perverse or impossible, it is not permissible for this Court to interfere with the same. No perversity is noticed in the approach adopted by the trial court to warrant interference. 6 Insofar as the judgment of the learned Single Judge of this Court in the case of Sanjay s/o. Shrikishanji Somani & Anr. vs. Vishnupant s/o. Shankarrao Shahane is concerned, no doubt that the Courts are required to take into consideration the prima facie case on the basis of 5 wp 7600-2010.sxw material placed before it. However, as already discussed herein above, the question as to whether the injunction is to be granted or not would depend upon the satisfaction of the three tests aforesaid. 7 Petition, therefore, is rejected. 8 Taking into consideration the nature of dispute, hearing of the trial is expedited. (B.R. GAVAI, J)