-1- FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR. WRIT PETITION NO. 3065/2008. (Taherabai Shikh Zakir .vrs. Sajjdabegum Sayyed Abdul Sauf ) ----------------------------------------------------------------------------------------------------------------------------------- Office Notes, Office Memoranda of Coram appearances, Court's orders or Directions Court's or Judge's Orders. And Registrar's Orders. ----------------------------------------------------------------------------------------------------------------------------------- CORAM : B.P.DHARMADHIKARI, J. DATED : OCTOBER 13, 2008. Heard Advocate Shri O.Y. Kashid for petitioner / original defendant. Order impugned is judgment dated 30.04.2008 in Misc. Civil Appeal by the District Judge-2, Akola whereby it partly allowed the appeal filed by the present respondents. It found that as the construction was already complete there was no question of granting any temporary injunction to appellants before it i.e. to the present respondents. However, it found that the proceedings under Order 39 Rule 2A ought to have been separately registered and tried in accordance with law. -2- Advocate Shri Kashid, has tried to show that by moving said application under Order 39 Rule 2(a) of Code of Civil Procedure, the respondent / original plaintiff have enlarged the scope of suit itself and therefore, that application was rightly rejected by the trial Court. The consideration of said aspect by the Lower Appellate Court reveals that the said Court was prima facie satisfied that the construction was carried out when status quo order was operating. The evidence on record and finding about nature of construction or whether it was in breach of that order are absent. It therefore, rightly directed to register same as separate proceeding. There is no perversity or jurisdictional error. The contention of Advocate Shri Kashid can be gone into by the trial Court while considering the alleged breach on merits in said separate proceedings. Writ Petition is dismissed. No cost. JUDGE Rgd.