19.07wp.2166.11.odt 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR WRIT PETITION NO. 2166 /2011 ( Narayan Ramaji Jadhao vs. Ashok Ramaji Bhele ) ............................................................................................................................................................... Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's order of directions and Registrar's orders ............................................................................................................................................................... CORAM : R.M.SAVANT, J. DATED : 19th July, 2011. Heard Mr. A M Kukday, learned counsel for the petitioner. The above petition takes exception to the judgment and order dated 22.11.2010 passed by learned Ad-hoc District Judge, Yavatmal, by which order, the appeal filed by the petitioner came to be dismissed and thereby the refusal of temporary injunction by the trial Court came to be confirmed. The petitioner is the original plaintiff who has filed RCS No.105/2005 for permanent injunction against the respondent in respect of land bearing Gut No. 43/1 of village Wadgaon Tq. & Dist. Yavatmal. In the said suit, the petitioner has filed an application for temporary injunction. It is the case of the plaintiff that he is in possession of the said land in question and reliance was placed by the plaintiff on the 7/12 extract in respect of the said land. The respondent herein i.e. defendant in the said suit, filed his reply to the said application for temporary injunction. It was the case of the defendant that he has purchased the land in question pursuant to the agreement of sale and the consideration for the same was Rs. 7 lakhs, out of which an amount of Rs. 6,52,200/- has already been paid to the plaintiff. The agreement for sale was executed on 8.12.1998. The trial Court considering 19.07wp.2166.11.odt 2 the aforesaid facts and considering that the land in question was fallow, did not deem it fit to exercise the discretion in favour of the petitioner as the trial Court was of the view that in view of the admission of the execution of the said document i.e. agreement of sale and the receipt of the said huge amount of Rs.6,25,200 by the plaintiff, the discretion could not be exercised in favour of the plaintiff. The application for temporary injunction accordingly came to be rejected by the impugned order dated 17.11.2005. The petitioner aggrieved by the said order dated 17.11.2005, filed an appeal being RCA No.27/2005 which came to be dismissed by the learned Ad-hoc District Judge Yavatmal by the impugned judgment and order dated 22.11.2010. The first Appellate Court on consideration of the material on record, confirmed the findings recorded by the trial Court. It appears that during pendency of the appeal proceedings, the suit came to be dismissed in default which came to be restored only after the impugned order came to be passed i.e. on 26.11.2010. Both the Courts below were of the view that the assertions of the respective parties would require evidence to be led and findings to be recorded. Having considered the impugned orders passed by both the Courts below, in my view, the discretion exercised by the Courts below in the facts and circumstances of the case cannot be faulted with. There is no illegality or infirmity in the orders passed. No case for interference is, therefore, made out. The Writ Petition is accordingly dismissed. JUDGE sahare