1 IN THE HIGH COUT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.1879 OF 2009 Sopan Rambhau Mashere & Ors. .... Petitioners Vs. Dnyanadeo Daulat Pathare & Ors. .... Respondents Mr. K.S. Dewal for the Petitioners. Mr. Vilas B. Tapkir for Respondent Nos.1 and 2. CORAM : A.S. OKA, J. DATE : 30 TH SEPTEMBER, 2009. P.C. : 1. Heard learned Counsel appearing for the petitioners. A challenge in this Writ Petitioner under Article 227 of the Constitution of India is to the judgment and order dated 3 rd December, 2008 passed by the learned District Judge-12, Pune. The petitioners are the original plaintiffs. An application for temporary injunction was made by the petitioners-plaintiffs which was partly allowed by the trial court. The Appeal was preferred by the first and second respondents before the District Court, Pune. The said 2 Appeal has been allowed and the application for temporary injunction made by the petitioners has been rejected. 2. Considering the fact that the impugned judgment and order is cryptic and considering the fact that the Appeal has been dealt with in most unsatisfactory manner, this Court was inclined to issue rule and keep the Writ Petition for final hearing. The learned Counsel appearing for respondent Nos.1 and 2 states that instead of keeping the Writ Petition pending in this Court, by setting aside the impugned order, the appellate court be directed to rehear the Appeal. 3. The suggestion made by the learned Counsel appearing for the first and second respondents is reasonable. While passing the order of remand, it must be made clear that the Appeal has been disposed of in most unsatisfactory manner. Even proper points for determination have not been framed. It is true that scope of an Appeal under Rule 1(r) of Order XLIII of the Code of Civil Procedure, 1908 is different from an Appeal under Section 96 of the said Code. Still the requirement of framing proper points for determination is not dispensed 3 with. The appellate court has to consider all the factual aspects afresh. Whether the appellate court interferes with the discretionary order of temporary injunction or not is altogether a different matter. In the present case the Appellate Court has not done its duty. 4. Hence, I pass following order : “O R D E R” (i).The impugned judgment and order dated 3 rd December, 2008 passed by the learned District Judge-12, Pune is quashed and set aside and Miscellaneous Civil Appeal No.256 of 2008 is restored to the file. (ii).The parties are directed to appear before the learned Principal District Judge, Pune on 3 rd November, 2009 at 11 a.m. (iii).The learned Judge may himself take up the Appeal for final disposal or may 4 assign it to any other court as per its administrative convenience. (iv).The Appeal shall be heard and decided as expeditiously as possible in the light of observations made in this order. (v).The appellate court will decide the Appeal on or before 31 st March, 2010. (vi).The Writ Petition is partly allowed in above terms. A.S. OKA, J.