1 WP 3011.2010 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 3011 OF 2010 Office Notes,Office Memoranda of Coram,appearances, Court's orders or directions and Registrar's orders Court's or Judge's orders Mr. P.S.Patil, Advocate for the Petitioner Mr. P.M.Shah, Sr. Counsel for the Respondent. .......................... CORAM : S.V. GANGAPURWALA, J. DATE : 27/06/2011 PER COURT : 1. The petitioners are the original defendants. The respondent had filed Suit for injunction along with temporary injunction application. The said application was rejected. Aggrieved thereby, the plaintiff filed Appeal. The District Court allowed the Appeal and clamped injunction against the petitioners vide Judgment and Order dated 15/12/2009. Aggrieved thereby, the defendants have filed the present Writ Petition. 2. Mr. P.S.Patil, the learned counsel for the petitioners vehemently submits that the lower 2 WP 3011.2010 appellate court should not have interfered with the discretion exercised by the trial Court. The trial Court has considered all the relevant aspects i.e. the affidavit of the witnesses and the case putforth by the present petitioners that the possession was delivered to the petitioners pursuant to the agreement to sale. The learned counsel further contends that the lower appellate Court has not considered the bonafides and that the plaintiffs were not in need of the Plot as such sold it vide auction and the defendant was in need of the plot and hence purchased in auction. The defendant after purchase of the plot, had erected the shed, so also is keeping the cattles. According to the learned counsel, the court below has not considered that even the agreement recites that it is open plot, but, the defendant has constructed a shed which is supported by the affidavits of witnesses, the photographs and the minutes of auction. The learned counsel further submits that if injunction is clamped, the petitioners would suffer irreparable loss. The balance of convenience is in favour of the petitioners and not the plaintiff, who has sold the said property by auction and has also received the consideration amount. 3. While deciding an application for temporary injunction, the Court has to consider the prima 3 WP 3011.2010 facie case. The merits and the demerits of the documents can only be scanned after the evidence has been led. At this stage, only prima facie case has to be considered. The lower appellate court has observed that even in the agreement of sale, the possession was to be delivered at the time of execution of the sale deed. No sale deed is executed till date. It is also further observed by the lower appellate court that the affidavit is given by one of the attesting witness of the agreement. He does not state anything about delivery of possession. The revenue record also shows the possession of the plaintiff. The lower appellate court prima facie weighed the case while granting temporary injunction. The panchanama said to have been prepared by the members of the Gram Panchayat, was not before the court below. As such, the court below had no occasion to comment upon the same. 4. Be that as it may. The view taken by the lower appellate court is a plausible view, which may not call for interference in the supervisory jurisdiction of this Court under Article 227 of the Constitution of India. 5. The trial Court, taking into account the above conspectus of the matter, shall expeditiously 4 WP 3011.2010 dispose off the Suit dehors the observations made by the court while deciding the application Exh. 5. 6. In view of the above, the Writ Petition is dismissed, however with no order as to costs. [ S.V. GANGAPURWALA,J. ] KNP/WP 3011.2010