1 AO 179/2011 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD APPEAL FROM ORDER NO.179 OF 2011 With CA/12496/2011 AMAR BHAGWANDAS KAMDAR AND ORS VERSUS KISHANCHAND DAMANDAS CHETWANI AND ORS ... Advocate for Petitioners : Mr. PM Shah, Sr.Counsel h/for Mr. Deshpande Amit S Mr.VD Gunale, Adv. for Respondent. ***** CORAM : K.U.CHANDIWAL, J. DATE : 5th DECEMBER,2011. PER COURT : 1) Heard finally. 2) Rejection of application in RCS No.461/2006 by order dated 21.9.2011 is questioned by the plaintiffs. The parties are referred as per their original nomenclature in the suit. 3) In said RCS no.461/2006, basically an application Exhibit-5 was moved by the plaintiffs and on 21.6.2010, learned Extra Joint Civil Judge, Senior Division, Latur, allowed the application with following indications : “(1) Application is allowed; (2) Defendants and persons on their behalf are hereby temporarily restrained from causing any sort of interference in the possession of plaintiffs in respect of the suit 2 AO 179/2011 road, inner and outer gate and other open space, as shown in green and blue colour in the map annexed with the plaint till the final disposal of this suit. (3) Costs would costs in main cause.” 4) The plaintiffs found that in spite of there being an injunction in their favour, the access has been obstructed to by the defendants by an impediment of a wall as a blockage and putting a lock to the exit gate. Consequently, the application below Exhibit-95 was moved. 5) The prayers in Exhibit-95 are: “by allowing this application of the plaintiff, the defendants be directed and ordered to restore possession of the plaintiffs over the suit road and suit road may be freed for the user of the plaintiff, the police aid may be provided for that, if it requires in the circumstances.” 6) Divorced from earlier chequered history referred by the parties in Regular Darkhast, prayer for entertaining Exhibit-95 itself was clumsy and confusing in its character. When the plaintiffs were armed with injunction below Exhibit-5, not yet disturbed even if Misc. Civil Appeal is preferred, there were other recourses available to them, which they have not exhausted. 7) Mr.Gunale submits, defendants have not caused any obstruction at the access. It is reflected in the order of the learned Judge that the 3 AO 179/2011 defendants dispute, having erected any blockage on the road. If this is the position, even not controverted at this stage, the remedies under Order 39 Rule 2-A of CPC, are explicitly available to the plaintiffs. That apart, since the authorship of erecting impediment is disputed by the defendants, it is for the plaintiffs to take police aid/assistance to remove such obstacle/obstruction in the light of Exhibit-5 being already in their favour. 8) Rejection of earlier application in the Regular Darkhast, at this stage, will not be operating as the order of injunction is prior in time dated 21.6.2010, while the order referred by Mr.Gunale in Regular Darkhast No.38/2005 are of October 2010 (Exhibit-65 and 70 therein). 9) In the result, the order under challenge is not disturbed. The plaintiff is at liberty to exhaust the remedies, as available under the law, as injunction dated 21.6.2010 flows in his favour. Appeal from Order with CA disposed of. (K.U.CHANDIWAL) JUDGE bdv/