dgm gm gm IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION WRIT WRIT WRIT PETITION NO.6273 OF 2008 PETITION NO.6273 OF 2008 PETITION NO.6273 OF 2008 Shri Vinod M. Kulkarni Petitioner Vs. Smt.Surekha J.Shah Respondent. Mr.G.S.Godbole with Ms.Pallavi N. Dabholkar for the Petitioner. Mr.S.G.Deshmukh i/b. Mr.A.D.Avhad for the Respondent. CORAM CORAM CORAM : ANOOP V.MOHTA, J. : ANOOP V.MOHTA, J. : ANOOP V.MOHTA, J. DATED DATED DATED : 11th December 2008. : 11th December 2008. : 11th December 2008. P.C. P.C. P.C. The petitioner has challenged the impugned order dated 1.08.2008, the operative part of which is reproduced below: ‘Application Ext. 5 is allowed as under: Pending hearing and final disposal of this miscellaneous appeal, defendant respondent is restrained from creating any third party interest in respect of the suit property as mentioned in paragraph No.1 subject to the decision of this appeal. The respondent is hereby directed to remove his lock and hand over possession of the suit property to the plaintiff, provided appellant deposits Rs.50,000/- towards the arrears of lease amount or the rent amount and shall further deposit Rs.50,000/- in advance within two weeks from today, failing which this order shall become ineffective. The appellant shall also undertake that she will not create any third party interest or try to waste or damage the suit factory premises in any manner whatsoever. She also ( 2 ) undertake to allow defendant/respondent to put the lock on the suit premises if the decision in this appeal goes against her. On depositing the amount, the respondent will be at liberty to withdraw the amount with the leave of the trial court. With this, application Ext. 5 stands disposed of. Civil Miscellaneous Appeal is kept for final hearing on 20th September, 08. Amount to be deposited in lower Court. ‘‘ 2. The fact remains that the suit is pending. 3. The injunction application, Exh. ‘5‘ as moved in the said suit was dismissed by a reasoned order. Therefore, there was no interim mandatory injunction granted by the trial court. In an Appeal, an application, exhibit ‘5‘ was moved. The Appellate court, pending the Appeal, however, granted this application and passed an impugned order. This according to me, practically granting the decree as prayed. The controversy, even if any, prima facie had been taken note of by the trial court while considering the case and rejected the injunction application. The Appeal, if pending, the Appellate Court in such circumstances ought not to have granted this application which is practically amounts to ( 3 ) granting the decree. Another facet which is important in the present matter is that the plaintiff is in possession of the suit premises on the basis of leave and licence agreement of the year 2002. The earlier suit was filed in the year 2002 and sought various declaration. He is in possession based upon that. However, by order dated 7.2.2008 sought permission to withdraw the suit unconditionally. The suit was disposed of accordingly, The exparte injunction passed on 24.1.2003 was vacated. The petitioner, therefore, till disposal of the said suit was in possession of the premises based upon the order passed by the court. 4. Before withdrawal of suit, the petitioner/plaintiff has filed the present suit. As there was no service of the summons to the petitioner and whatever may be the reason, the defendant put lock and thereby got the possession of the premises on 9.2.2008. The petitioner thereafter moved amendment application and amended the basic prayers of the suit and sought possession of the suit premises. The fact remains that on the date of injunction application moved by the petitioner/plaintiff was not in possession of the premises. The loss of possession, even if any and under what circumstances that is definitely matter of discussion and debate. These ( 4 ) rights just cannot be decided at this stage basically when the trial court considering the various facts rejected the said application of mandatory injunction. By the impugned order, the appellate court has granted the decree pending the appeal. In my view, that is not correct. 5. Taking all this into account,keeping all points open. I am inclined to interfere with the said order. The impugned order is quashed and set aside. The parties to maintain status-quo. However, to avoid further complication in the matter, it is desirable that the learned District Judge to hear the Appeal as early as possible on the date fixed and/or preferably within six weeks. The writ petition is allowed accordingly. No costs. ( ANOOP V. MOHTA, J.) ANOOP V. MOHTA, J.) ANOOP V. MOHTA, J.)