IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE CIVIL JURISDICTION WRIT PETITION NO.7690 OF 2008 Sarjerao Tukaram Pawar ..Petitioner Vs. Dattatray Bhanudas Mali ..Respondent Ms.P.B.Walimbe, Advocate for petitioner. Mr.Pratap Patil, Advocate for respondent. CORAM : S.C.DHARMADHIKARI, J. DATE : 22nd April, 2009. P.C. 1 This petition challenges the order passed by the District Judge-2, Islampur, in Misc. Civil Appeal No.26/2006 by which the application for temporary injunction preferred by first respondent- plaintiff has been allowed and the petitioner no.1 has been restrained from obstructing the joint possession of the plaintiff over the suit land till the decision of the suit. 2 After this matter was heard for some time, what I have noticed is that from the stage at which the trial Court dealt with the application and when the District Court passed the Impugned order a period of nearly three years had gone by. The lower appellate court has interfered on the basis of materials produced before the trial court when the application was being heard by it. Thereafter, the petitioners who are defendants to the suit have filed written statement which is on record. It is their specific case that the petitioner no.1 has purchased only 3 Are area of the property and the Sub Divisional Officer granted permission to use the property as access. The petitioner no.1 is using this land as access to his field. Considering this position and that the lower appellate court has granted the order of temporary injunction, in my view, interest of the justice would be subserved if the petitioners are granted liberty to apply for modification of the order passed by the lower appellate court. That they can do my moving the trial court and the trial court must consider the application without being influenced by the order of lower appellate court and on its own merits in accordance with law. Needless to state that the petitioner can, without prejudice to their rights and contentions, also file an undertaking if they desire not to use the land. The trial Court to consider that aspect also. It is needless to state that after hearing both sides the trial court will pass appropriate order so as not to prejudice the parties during the pendency of the suit. All contentions of both sides are kept open. Writ petition is accordingly disposed of. [S.C.DHARMADHIKARI, J] *7690-08