1 wp1655.11.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION Writ Petition No. 1655 of 2011 Merwan Feroze Cama ...Petitioner v/s. Parmeshwar Mittal & ors. ...Respondents Mr. S.U. Kamdar, Sr. advocate i/b. Tejesh Dande for the petitioner. Senior Counsel Mr. Vijay Thorat with Advocate Vaibhav Sugdare a/w. Advoate Amey Navar and Advocate Deeksha Dadwal i/b. Hariani & co. for the respondents. CORAM:- B.R. GAVAI, J DATED :- FEBRUARY 25, 2011. P.C. Rule. Rule, made returnable forthwith. 2. By consent, petition is taken up for final hearing. 3. By way of present petition, the petitioner challenges the order passed by the learned Joint Civil Judge, Senior Division, Pune below exhibit 5 and 27 in RCS No. 1773/2010 thereby rejecting an application filed by the present petitioner below exhibit 5 and allowing the application filed by the 2 wp1655.11.sxw respondent-defendant below exhibit 27 and the order passed by the learned Appellate Court dated 27th January, 2011 dismissing the appeals filed by the present petitioners against the order passed by the learned trial Court. 4. Insofar as the order passed by the learned trial Court below exhibit 5 is concerned, the findings thereon by the learned trial Court has been concurred with by the Appellate Court and as such I am not inclined to interfere with the same. 5. Insofar as the application below exhibit 27 is concerned, it is the grievance of the Petitioners that the application for temporary injunction by the defendants restraining the order of restraint interfering with their possession by the plaintiff would not be tenable under Order 39 Rule 1 and 2. 6. In view of this objection, Shri Thorat - the learned senior Counsel appearing on behalf respondent-plaintiff makes a statement on instructions that the respondent-defendant do not press the Application below exhibit 27 and seek to withdraw the same with liberty to file afresh. In that view of the matter, insofar as exhibit 27 is concerned, the grievance of the petitioner no 3 wp1655.11.sxw more survives. 7. The Application filed by the respondent-defendant below exhibit 27 would, therefore, stand disposed of as withdrawn. As a consequence thereof, the order passed by the learned trial Court allowing the same and the learned Appellate Court confirming the same, would no more survive. 8. The respondents-defendants would be at liberty to file an application for temporary injunction either in the suit that they may propose to file or in the counter claim, if it is allowed by the learned trial Court. The petitioner- plaintiff would be at liberty to raise all the grounds including that tenability of an application by the defendants in the counter claim. 9. Needless to state that Court has not considered the matter on the merits and parties would be at liberty to agitate their rights in accordance with law. 10. Disposed of in the aforesaid terms with no order as to costs. (B.R. GAVAI, J)