1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 1051 OF 2010 KAKASAHEB UTTAM GAIKWAD AND OTHERS ..PETITIONERS VERSUS SHAIKH RASHID SK KASAM AND ORS ..RESPONDENTS ... Shri Ravindra V.Gore, Advocate for the petitioners ... CORAM : S.B.DESHMUKH,J. Dated : 23.2.2010 PER COURT :- 1. The petitioners take an exception to the judgment and order passed by the first appellate Court in Misc. Civil Appeal No. 155 of 2009, dt.3.11.2009. 2. Respondents (plaintiffs) had filed RCS No.8 of 2009 in the court of the learned Civil Judge J.D. Vaijapur for perpetual injunction against petitioners (defendants 1 to 3) to the effect that they shall be restrained from carrying out construction over the public road. In the suit, an application for temporary injunction was filed at Exhibit 5. Initially, ex-parte ad-interim injunction was granted by the trial Court. However, after appearance of defendants, it was heard and rejected on 28.7.2009. 2 Said order of rejection of temporary injunction application was challenged in Misc. Civil Appeal No.155 of 2009 before the first appellate Court. As observed earlier, said appeal was allowed and defendants were restrained temporarily from carrying out the construction over the disputed road till disposal of the suit. 3. Learned counsel for the petitioners points out that construction activity undertaken by the petitioners has been completed uptil slab level. The trial Court, though initially granted ex-parte temporary injunction, after hearing both the parties, rejected the same. He took me through the order passed by the trial Court. According to him, the trial Court did not appreciate the material on record and refused to grant injunction in favour of the plaintiffs. Alleged encroachment made by the petitioners is not accepted by the trial Court. The trial Court observed that unless the Taluka Inspector of Land Records is examined, alleged encroachment cannot be accepted to be committed by the petitioners. According to him, despite this fact, the first appellate Court illegally allowed the appeal and injuncted the petitioners. According to him, said order is illegal. 4. I have given due consideration to the submissions of the learned counsel for the petitioners and also considered the orders of the Courts below. Temporary injunction is a matter governed by Order XXXIX Rules 1 and 2 of CPC. Judicial discretion has been substituted by the first 3 appellate Court, based on the material on record. Considering the submissions of learned counsel for the petitioners, in my view, no case for interference at this stage has been made out. The material on record i.e. complaint made to Block Development Officer and grant of permission for construction by the Village Panchayat in favour of the petitioners has been considered by the first appellate court. In my view, the first appellate Court has justifiably recorded findings in favour of the plaintiffs that there is prima facie case and balance of convenience in favour of the plaintiffs and in case of refusal, the plaintiffs would be put to suffer irreparable loss. 5. In my view, no case for interference for exercising the extra ordinary jurisdiction has been made out. 6. In the result, Writ Petition stands dismissed. No order as to costs. The trial Court shall, however, decide the suit in accordance with the evidence and provisions of law, without being influenced by the order passed by the first appellate Court. ( S.B.DESHMUKH, J.) ... akl