1 W.P. 9817.2011 - [ J ] IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 9817 OF 2011 1. Ganpatrao S/o Giramaji Kulkarni Age : 80 Yrs., Occ. Agriculture, R/o : Kostgaon, Tq. Renapur, Dist. : Latur. 1. Jayant S/o Ganpatrao Kulkarni Age : 40 Yrs., Occ. Agriculture, R/o : Kostgaon, Tq. Renapur, Dist. : Latur. ....PETITIONERS V E R S U S Sumant S/o Shankarrao Deshmukh Age : 73 Yrs., Occ. Retired servant, R/o : Siddhivinayak, Pawan Nagar, Bhawsar Chowk, Taroda (Khurd), Nanded. ..... RESPONDENT Mr. T.M.Venjane, Advocate for the Petitioners. Mr. S.S.Thombre, Advocate for Resp. No. 1 WITH WRIT PETITION NO. 9833 OF 2011 2 W.P. 9817.2011 - [ J ] Shrimant S/o Shankarrao Deshmukh Age : 73 Yrs., Occ. Retired servant, R/o : Siddhivinayak, Pawan Nagar, Bhawsar Chowk, Taroda (Khurd), Nanded, through P.A. Holder, Mahadeo S/o Sopanrao Ghule Age : 40 Yrs., Occ. Agri. & Social Worker, R/o : Koshtgaon, Tq. Renapur, Dist. Latur. .... PETITIONER V E R S U S 1. Ganpatrao S/o Giramaji Kulkarni Age : 80 Yrs., Occ. Agriculture, R/o : Kostgaon, Tq. Renapur, Dist. : Latur. 1. Jayant S/o Ganpatrao Kulkarni Age : 40 Yrs., Occ. Agriculture, R/o : Kostgaon, Tq. Renapur, Dist. : Latur. ..... RESPONDENTS Mr. S.S.Thombre, Advocate for Petitioner. Mr. T.M.Venjane, Advocate for Resp.No. 1. CORAM : S.V.GANGAPURWALA, J. DATE OF JUDGMENT : 21/12/2011. 3 W.P. 9817.2011 - [ J ] ORAL JUDGMENT : 1. Rule. Rule made returnable forthwith. With the consent of the learned counsel for the respective parties, taken up for final hearing. 2. The petitioner in W.P. No. 9817 of 2011 is the original plaintiff, who had filed Suit for injunction. Along with the Suit, the petitioner has also filed an application [ Exh. 5 ] for temporary injunction. The petitioner in W.P. No. 9833 of 2011 is the original defendant, he had filed counter claim in the Suit along with an application [ Exh. 32 ] for temporary injunction. 3. The trial Court allowed the temporary injunction application of the defendant and rejected the temporary injunction application of the plaintiff. Aggrieved thereby, the plaintiff preferred two ( 2 ) Appeals bearing Misc. Civil Appeal No. 90 of 2011 and Misc. Civil Appeal No. 91 of 2011. The Misc. Civil Appeal No. 91 of 2011 was allowed, whereby the application [ Exh. 32 ] filed by the defendant was rejected and the Misc. Civil Appeal No. 90 of 2011 was dismissed, wherein the rejection of application [ 5 ] was confirmed. The plaintiff and defendant have preferred the present Writ Petitions. 4 W.P. 9817.2011 - [ J ] 4. From the perusal of the order, it is manifest that the application of the defendant [ Exh. 32 ] for temporary injunction is rejected by the appellate Court on the ground that the said application is not tenable and the defendant has no right to claim injunction. The District Court lost sight of the fact that the defendant has filed counter claim and thereafter has filed temporary injunction application. Once the defendant has filed counter claim, in such circumstances, the temporary injunction application filed along with counter claim is maintainable. However, from the perusal of the impugned Judgment, it is manifest that the District Court has not arrived at prima facie finding about the possession of either parties. The District Court has to prima facie consider the aspect of possession and thereafter is required to decide the application for temporary injunction. As the said exercise does not appear to have been done, I am inclined to quash and set aside the said order and allow both the Writ Petitions relegating the parties to put-forth their cases in both the Appeals afresh. 5. In the result, the impugned order dated 12/12/2011 passed by the Adhoc District Judge, Latur in Misc. Civil Appeal No. 90 of 2011 and Misc. Civil Appeal No. 91 of 2011 is quashed and set aside. The parties shall appear before the District Court, Latur on 05/01/2012. The District Court, Latur shall thereafter decide Misc. Civil Appeal No. 90 of 5 W.P. 9817.2011 - [ J ] 2011 and Misc. Civil Appeal No. 91 of 2011 within one month thereafter. The Writ Petitions are accordingly disposed of. 6. Rule is accordingly made absolute in above terms. No costs. [ S.V. GANGAPURWALA,J. ] KNP/W.P. 9817.2011 - [ J ]