abs IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPLICATION NO. 1654 OF 2007 IN SECOND APPEAL NO. 913 OF 2007 Rajaram Bharma Naik .. Applicant V/s Smt. Sumangal Chandrakant Shete & Anr. .. Respondents Mr.T.S. Ingale for the applicant. Ms. Jai V. Mhaskar - Kanade for respondent no.2. CORAM : D.G. KARNIK, J. DATE : 2ND DECEMBER 2008 P.C. P.C. P.C. : 1. Heard. 2. By this application, the applicant, who is original plaintiff in a suit for specific performance, prays for an injunction restraining the respondents from disturbing the possession in the suit property. 2. I am prima facie satisfied that the applicant is in possession of the suit property. In Regular Civil - 2 - Appeal No.279 of 2003 from which the present appeal arises, the present applicant had made an application for interim injunction restraining the respondents from disturbing his possession in the suit land. By an order dated 13th December 2005 passed below Exhibit-31 in the said appeal, the appellate court had granted injunction restraining the respondents from disturbing the possession of the applicant. No appeal was carried against the said order and it had attained finality. This prima facie shows that the applicant was not only in possession of the property but his possession was protected by an order of injunction passed by the lower appellate court. 3. In a collateral proceeding, namely Regular Civil Suit No.344 of 2006, also an issue had arisen as to who was in possession of the property. In the plaint in the said suit, the applicant had asserted his possession of the suit property. In para 8 of the written statement filed by the respondents, they have stated that in Regular Civil Appeal No.279 of 2003 the respondents were restrained by an order of injunction from disturbing his possession and after that decision, the respondents have not even gone towards the suit land. This admission on the part of the respondents prima facie establishes that the applicant was in possession of the suit property. In my view, since the applicant was in possession of the - 3 - suit property, his possession needs to be protected till the decision of the appeal which has already been admitted. 4. Learned counsel for the respondents, however, vehemently submitted that this is a second appeal and the question as to who is in possession of the property has not been framed as a substantial question of law by this Court (my predecessor) while admitting the appeal and, therefore, this Court cannot at this stage grant interim relief on the basis that the applicant is in possession of the property. Relying upon a decision of the Supreme Court in Dnyanoba Bhaurao Shemade v. Maroti Bhaurao Marnor, reported in (1999) 2 SCC 471, she submitted that in a second appeal the Court cannot decide any issue which is not a substantial question of law. She submitted that since the lower appellate court has held that the applicant was not in possession of the property and no substantial question of law regarding possession has been framed, this Court, even at the interlocutory stage, cannot grant an injunction. In my view, the submission is misplaced for the reasons more than one. 5. The object of interlocutory order under Order 39 of the Code of Civil Procedure is to prevent a party whose intends to remove or dispossess the other from - 4 - possession of the property without due process of law. Since the two documents mentioned above prima facie show that the applicant is in possession of the property, the applicant is entitled to an interim injunction. Secondly, it cannot be disputed that the questions of law which has been framed at the preliminary hearing on admission can always be modified by the court at the stage of final hearing of the appeal. It is not impermissible for the court to frame substantial question of law relating to perversity of the finding of possession at the final hearing of the appeal. Powers of the court to grant an injunction at interlocutory stage cannot be curtailed on the ground that no substantial question of law has been framed regarding possession at the time of admission of the appeal. 6. For these reasons, the civil application is allowed in terms of prayer (a). (D.G. KARNIK, J.)