-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION Writ Petition No.3677 of 2007 1. Smt.Surekha Waman Koulvakar and others ..Petitioners vs. 1. Smt.Champabai Ganpat Koulvakar and another ..Respondents Shri D.V.Sutar for petitioners. Shri S.S.Shah for respondents. CORAM: S.C.DHARMADHIKARI J. CORAM: S.C.DHARMADHIKARI J. CORAM: S.C.DHARMADHIKARI J. 9th January, 2008 9th January, 2008 9th January, 2008 P.C. P.C. P.C. 1. This writ petition is directed against the order passed by the Trial Court allowig the application (Exh.49) in Reg.Civil Suit no.12 of 2000. 2. The Trial Court has ordered that plaintiff no.2 Sulochana Vithal Potdar should be permitted to retain the possession of City Survey No.435. The defendants to this suit have challenged this order on the ground that the said order is on application (Exh.49) . That application was preferred by plaintiff no.2. That application prayed that the Police Inspector, Kagal police Station be directed to hand over possession of -2- City Survey No.435 to Sulochana Vithal Potdar. 3. The application was contested and reply affidavit has been filed by the defendants. They have specifically stated that the plaintiffs are not in possession of city survey no.435. On the other hand if any mandatory order is granted they would start claiming possession of the said land. 4. These were the highly contentious issues. The application made prayed for a direction to the police to hand over possession, yet, Shri Shah appearing for the respondent/plaintiff no.2 does not dispute that this was a prayer for temporary injunction in the mandatory form. If that be so, the learned Judge should have dealt with the same on the touchstone of the well settled principles. While none disputed that the temporary injunction in the mandatory form can be granted, yet, the principles with regard to grant of the same are equally well settled. A perusal of the impugned order does not demonstrate that the learned Judge has adhered to them. There is nothing in the order which would indicate that a strong prima facie case is made out and in whose favour the balance of -3- convenience lies and also who will suffer irreparable harm and injury. In such circumstances, the order dated 26th March, 2007 cannot be sustained. It is accordingly quashed and set aside. However, it would be open for plaintiff no.2 to apply for temporary injunction in the mandatory form, either by reviving Exh.49 or by substantive application in that behalf and if such application is made the same will be heard on its own merits and in accordance with law and the same shall be disposed of within a period of four weeks from the date of its presentation. Petition is disposed of. (S.C.DHARMADHIKARI J.) (S.C.DHARMADHIKARI J.) (S.C.DHARMADHIKARI J.)