IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO. 649 OF 2009 SHRI DIGAMBAR SONU KORGAONKAR ... Petitioner Versus M/S. FERICEM ENGG CO.PVT. LTD. AND 7 ORS. ... Respondent Mr. V. A. Lawande, Advocate for the petitioner. Mr. A. D. Bhobe, Advocate for respondent No.1.] Mr. D. Pangam, ADvocate for respondents No.3, 4, 5, 6, and 8. Coram:- S. C. DHARMADHIKARI, J. Date:- 25th March, 2011 P.C.:- This writ petition under Article 227 of the Constitution of India is directed against the order passed by the lower Appellate Court dated 31/8/2009 in Misc. Civil Appeal No.89/09. 2. That Misc. Civil Appeal was filed challenging an order dated 28.5.2009 of the Civil Judge, Sr. Division at Mapusa in Regular Civil Suit No.176/2006. By that order, the application for temporary injunction filed by the petitioner/plaintiff came to be rejected. 3. Mr. Lawande appearing on behalf of the petitioner firstly submitted that the impugned orders are vitiated by an error apparent on the face of record, inasmuch as the Courts below have omitted from consideration the affidavits filed in support of the case set out in the plaint, namely, that the traditional access existed on the site that was used by the plaintiff/petitioner for more than 40 years and that the same was the only access leading to the agricultural land in which the plaintiff/petitioner has tenancy rights. Further, he submitted that the Courts below failed to take into account the certificate granted by the Village Panchayat in which it has been clearly stated that there was a traditional access. The width also was mentioned therein. The contents of the said certificate, prima facie, proves the case set out in the plaint. Thirdly, it is an error on the part of the Courts below to have omitted from consideration the fact that the plan/sketch produced identified the said motorable/traditional access. In such circumstances, even at this prima facie stage when the Petitioner is not expected to prove the documents produced and that the claim of the plaintiff/petitioner being that he cannot be compensated by damages, in case he succeeds in the suit, temporary injunction, as prayed, should have been granted. 4. On the other hand, learned Counsel appearing on behalf of respondent no.1, supported the concurrent orders by submitting that in the written statement filed on behalf of the said respondent No.1/original defendant No.1, it has been pointed out as to how the plaint is conflicting, and particularly there is access available from the southern side to the petitioner/plaintiff and that the property was unattended for last several decades. In such circumstances, it is submitted that the concurrent orders passed at the interim stage, require no interference by this Court. 5. Having heard the learned Counsel appearing for the parties at some length and perusing with their assistance the plaint and the application for temporary injunction and some of the documents, including the affidavits relied upon, I am of the view that the prima facie conclusions do not require any interference in my supervisory jurisdiction under Article 227 of the Constitution of India. The Courts below have faulted the plaintiff for not being able to produce any document to identify the access which is stated to be traditional. From a perusal of the plaint and particularly paragraphs 5 and 6 thereof, prima facie, the plaintiff/petitioner is unsure and in doubt as to whether there is a traditional access to the agricultural land for taking agricultural equipments by bullock-cart or it is in the form of a motorable road. Once such is the state of the pleadings, then at this stage, the sketch was not of any assistance either. The affidavits which are allegedly omitted from consideration, have been perused by me and they do not prima facie indicate the existence of the traditional access as claimed by the petitioner plaintiff. The affidavit of one of the workers of the plaintiff/petitioner would not be enough and the existence of the traditional access cannot be held to be prima facie proved by such an affidavit. 6. Therefore, the findings recorded by the Courts below cannot be said to be vitiated by perversity nor there is an error apparent on the face of the record, as contended. Ultimately, they are tentative and prima facie findings which do not decide the suit. The trial is yet to commence. The trial Court will, therefore, frame the necessary issues and determine them after the parties are given opportunity to lead oral and documentary evidence. At this prima facie stage there being no convincing material, the Courts below were under no obligation to protect the alleged claim of the plaintiff/petitioner. The writ petition is, therefore, rejected. 7. The reliance placed on the decision of the Hon'ble Supreme Court in the case of M/s. Joy Auto Works & Ors. vs. Sumer Builders (P) Ltd. & Anr., reported in 2009 (4) ALL MR 949, is totally misplaced, because there the case was of an access to a property situate in a city, which property was being developed for construction of houses. The Supreme Court concluded that the property was, prima facie, landlocked and some provision had to be made even at the prima facie stage to preserve a motorable access from the main road to the premises under the occupation of the appellants so that upon development of Plot No.879 such a right is not totally extinguished. It is in this context that the observations in paragraphs 26 and 27 have been made. 8. The other decision in the case of Shamrao Ganpat Chintamani vs. Kakasaheb Laxman Gorde, reported in 2009(2) ALL MR 118 also is of no assistance, because there is no quarrel with the principle that at the stage of temporary injunction the Court can refer to the documents which are produced on record without formal proof. This observation will not be of any assistance in the peculiar facts of this case. 9. In the result, the writ petition fails and is, accordingly, dismissed. However, all observations made by this Court, so also the Courts below, are tentative and prima facie and shall not influence the Trial Court while trying the suit. Equally, if there is any application made by defendant No.1/respondent No.1 for temporary injunction in its counter claim, even that application must be dealt with and decided uninfluenced by the observations and the findings in the impugned orders. All contentions in that behalf, of both sides, are kept open. S. C. DHARMADHIKARI, J. ssm.