1 pps IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 8372 OF 2011 Madhusudan Laxman Gavankar ...Petitioner Versus Digambar Atmaram Samant & Others ...Respondents Mr.Prashant Bhavake i/b. N.V.Bandiwadekar for the Petitioner Mr.G.A.Badri for the Respondent No.1 CORAM:- R.Y.GANOO, J. DATED:- 13th OCTOBER, 2011. P.C. 1. Heard learned Advocates on both sides. The order below Exhibit 5 granted by the learned Civil Judge, Junior Division, Vengurla in Regular Civil Suit No.22 of 2005 came to be challenged by the respondents by filing Civil Misc. Appeal No.40 of 2005. The said Civil Misc. Appeal has been decided by the learned Principal District Judge, Sindhudurg, Oros by order dated 19.7.2011. 2 2. The petitioner herein filed this petition so as to challenge the order dated 19.7.2011. I have heard learned Advocates on both sides. On perusal of the impugned order, along with points for determination which have been framed by the learned Principal District Judge, Sindhudurg clearly goes to show that there is non application of mind. The learned Principal District Judge framed following points for determination, while deciding the Misc. Civil Application.. a) Who has made out the prima facie case, the appellant, and the respondent ? Answer to this point is None. b) In whose favour balance of convenience lies. Answer to this point is None. c) Who was put to an irreparable loss? Answer is None. d) Whether the impugned order needs to be disturbed with and set aside? Answer given is Yes. 3. A perusal of framing of these points by the learned Principal District Judge goes to show that the learned Principal District Judge has not 3 framed the points for determination in proper manner. The suit was filed by the petitioner to seek an order of injunction restraining the respondents from interfering with his possession. The learned Trial Judge has granted the application below exhibit 5. In such a case, it was necessary for the learned Principal District Judge to frame appropriate poins and arrive at appropriate finding . 4. If the points framed and the findings recorded thereon are read, it will clearly go to show that the learned Principal District Judge has not been able to appreciate the manner in which the said Misc. Civil Appeal was required to be attended. Surely, if application for injunction was granted and other party comes up with a plea that the said order was wrong, while deciding the said appeal the balance of convenience would certainly lie either in favour of the plaintiff or defendant. The answer given here is none. In my view, the impugned order is required to the set aside with direction that the Misc. Civil Appeal No.40 of 2005 is required to be heard afresh. Since this appeal was heard by learned Principal District Judge, Sindhudurg, Oras, I am of the view that the same has to be now heard by some other Judge who is competent to take up this Misc. Civil 4 Appeal. Hence following order is passed. ORDER i) The Order dated 19.7.2011 passed by the learned Principal District Judge, Sindhudurg, Oros, in Misc. Civil Appeal 40 of 2005 is set aside. ii) Misc. Civil Appeal No.40 of 2005 is restored to the file of the District Court. Iii) The learned Principal District Judge, Sindhudurg, shall assign this Misc. Civil Appeal No. 40 of 2005 to another District Judge who is competent to hear and dispose of this Misc. Civil Appeal. After assignment of the Misc. Civil Appeal to an appropriate court, the said Court shall issue notices to both the sides and after hearing both the sides, the Civil Misc. Appeal be disposed of. iv) In the facts and circumstances of the case, the status quo which was prevailing as of 16.6.2005 being the date on which the learned Civil Judge, Junior Division, Vengurla, had passed an order below 5 Exhibit 5 shall prevail as between parties. v) The learned District Judge, to whom this Civil Misc. Appeal No.40 of 2005 will stand assigned shall hear and dispose of said appeal as expeditiously as possible and preferably on or before 31.12.2011. vi) Petition stands disposed of in above terms with no order as to costs. (R.Y.GANOO, J.)