1 pps IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 5563 OF 2008 Salim Dastagir Koraboo ..Petitioner versus Hazarat Mohammad Korabil & Ors. ..Respondents Mr.Umesh Mankapure for the petitioner Mr.Vijay Killedar for the respondent No.1 CORAM : A.S.OKA, J. DATE : 30th JULY, 2009. P.C: 1. This writ petition under Article 227 of the Constitution of India has been filed by the original second defendant. The suit was filed by the first respondent for declaration and partition. In the said suit the petitioner applied under Rule 1 of Order XXXIX r/w. Section 151 of the Code of Civil Procedure, 1908 (hereafter referred to as the said Code) for grant of prohibitory injunction against the first respondent/plaintiff. During the course of 2 hearing of the said application before the trial Court, a pursis was filed by the advocate for the petitioner stating that the application be treated as one filed under Section 94 of the said Code. By Order dated 17.9.2003, the said application was rejected and the appeal preferred against the said Order has been dismissed by District Court by judgment and order dated 8.2.2008. 2. The submission of the learned Counsel appearing for the petitioner is that the first respondent has himself relied upon an agreement under which the petitioner is placed in possession of a specified property. He submitted that while exercising power under Section 94 of the said Code, the trial court could have exercised powers under Rule 1 of Order XXXIX of the said Code. 3. After having heard the learned Counsel appearing for the petitioner, I find that no case for interference is made out. The relief sought under Section 94 of the said Code is also an equitable 3 relief. The trial court exercised discretion by passing order dated 17.9.2003 rejecting the prayer made by the petitioner. Though an appeal against the said order was not competent, the same was filed and entertained. Admittedly, during the pendency of the appeal there was no ad-interim or interim relief granted in favour of the petitioner. Thus from 17.9.2003 till today there is no ad-interim or interim relief operating in favour of the petitioner. There is no reason to interfere at this stage with the discretionary orders passed by the courts below. 4. Writ Petition is rejected. All contentions of the parties on merits of the suit are expressedly kept open. The suit will be decided by the trial Court without being influenced by the findings in the impugned order. Hearing of the suit is expedited. (A.S.Oka, J.)