SRJ wp-8131-09.sxw 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.8131 OF 2009 Smt.Innermati D. Kewat ..Petitioner. Vs. The State of Maharashtra & Ors., ..Respondents. Mr.S.P.Srivastav, for Petitioner. Ms. A.D.Vhatkar, AGP for State. CORAM : A.S.OKA, J.. DATE : 8th October, 2009. P.C. : 1] Heard learned counsel appearing for the petitioner, learned AGP for the 1 st respondent and the learned counsel for the 3 rd respondent. By the impugned order, the learned Trial Judge has declined to grant leave under section 80(2) of Code of Civil Procedure, 1908. 2] Leave was sought by the Petitioner on the ground that there was a threat of demolition of suit premises and, therefore, petitioner was required to apply for ad-interim injunction. While rejecting the prayer, the learned Trial Judge has considered the merits of the case made out by the Petitioner in the suit. The learned Trial Judge observed that there is SRJ wp-8131-09.sxw 2 no material placed on record to show that the suit structure was partly demolished and partly it is in existence. 3] Thus by an impugned order, the learned Trial Judge has purported to decide the prayer for interim relief which was made in suit which was not even registered. Looking the averments made in the application, leave ought to have been granted by the Trial Court. Whether the Petitioner succeeds in obtaining the ad-interim relief or not is a matter on merits of the suit. The Trial Court could not have made an adjudication on the existence of prima facie case in the suit. 4] Hence, impugned order is quashed and set aside and application made by the petitioner for grant of leave under sub-section 2 of section 80 of the Code of Civil Procedure, 1908 is hereby allowed. All contentions of merits are kept open. (A.S.OKA, J. )