1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR Appeal against Order No.131 of 2010 (Ghansham s/o Wadguji Karemore v. Dashrath s/o Wadguji Karemore and another) Office Notes, Memoranda of Coram, appearances, Court's orders or directions Court's or Judge's orders and Registrar's order Shri R.A. Gupte, Advocate for Appellant. Shri N.S. Talmale, Advocate for Respondents. Coram : R.K. Deshpande, J. Dated : 28 th March, 2011 1. This appeal challenges the order dated 17-8-2010 passed by the learned Civil Judge, Senior Division, Bhandara, rejecting the application Exhibit 36 filed by the appellant/defendant under Order 39, Rules 1 and 2 of the Civil Procedure Code in Special Civil Suit No.79 of 2007 filed by the respondent No.1/plaintiff for recovery of an amount of Rs.3 lacs. 2. The basis for claim of the respondent No.1/plaintiff for recovery of the said amount is that he is the joint owner of the suit mill to the extent of 1/3 rd share. This fact is denied by the appellant/defendant. The appellant/defendant filed an application under Order 39, Rules 1 and 2 of the Civil Procedure Code on the ground that since the Trial Court has framed issue No.1 regarding joint ownership of the suit mill to the extent of 1/3 rd share claimed by the respondent No.1/plaintiff, the respondent no.1/plaintiff is trying to disturb the possession of the appellant/defendant and 2 hence the application for grant of injunction was filed by the appellant/defendant against the respondent No.1/plaintiff. The said application has been rejected by the Trial Court, holding that in the absence of dissolution of the firm, the appellant/defendant cannot claim himself to be the sole owner and in possession of the said firm, and he is estopped from raising a plea of exclusive possession. It has recorded a finding that the appellant/defendant has failed to establish a prima facie case and the balance of convenience does not in his favour. It has further recorded a finding that no irreparable loss will be caused to the appellant/defendant if the application for injunction is rejected. 3. The respondent No.1/plaintiff has not filed the suit claiming a declaration that he is the joint owner of the suit mill to the extent of 1/3 rd share, as alleged in the plaint. The suit is simpliciter for recovery of an amount of Rs.3 lacs from the appellant/defendant. In view of this, the application for grant of injunction filed by the appellant/defendant was itself not maintainable and it should have been dismissed on that ground only. Since the application is dismissed, there is no reason to interfere in the order impugned in the present appeal. The appeal is, therefore, dismissed. However, it is made clear that the observations made by the Trial Court in the order impugned shall not come in the way of the appellant/defendant, if he files the separate suit claiming injunction or the relief claimed in the application for injunction. Judge pdl