1 wp 5994.10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 5994 OF 2010 Tamiz Shaha S/o Lal Shaha .. Petitioner Versus Bhikan Shah S/o Jamal Shah .. Respondent Shri D. R. Markad, Advocate for the Petitioner. Shri G. R. Syed, Advocate for the Respondent. CORAM : S. V. GANGAPURWALA, J. DATE : 07TH JUNE, 2011. PER COURT : . The petitioner is the original plaintiff who had filed suit bearing R.C.S. No. 89/2009 for declaration of ownership and perpetual injunction along with an application for temporary injunction. The Trial Court allowed the application for temporary injunction. Aggrieved thereby the defendant filed an appeal bearing M.C.A. No. 211/2009. The said appeal came to be allowed. Aggrieved thereby the plaintiff has filed the present writ petition. 2 wp 5994.10 2. Shri Markad, the learned counsel for the petitioner submits that the Appellate Court has to be loath in interfering with discretion exercised by the Trial Court. The Trial Court on consideration of prima facie case allowed the temporary injunction and the lower Appellate Court without considering the said factum and the material which was considered by the Trial Court erroneously rejected the application. According to the learned counsel it is an ex-parte judgment, as on the date of hearing the learned counsel for the petitioner could not remain present. As such, contends that the impugned order be quashed and set aside. 3. Shri Syed, the learned counsel for the respondent submits that in fact, though the petitioner's counsel was absent, still the lower Appellate Court has considered all the available material on record and has passed the impugned order on merits. The impugned order has been passed on 26th April, 2010 i. e. more than one year back. 4. The lower Appellate Court having considered the material on record has passed the impugned order. This Court in writ jurisdiction would not embark upon the investigation of finding of 3 wp 5994.10 fact. I have gone through the orders passed by the Courts below. At this stage the Court has to come to a prima facie conclusion. The evidence of the parties is yet to be recorded. It is submitted by the learned counsel for both the parties that the matter is ready for evidence in the Trial Court. In fact, it is fixed for the evidence. The Court would arrive at a final conclusion only after the evidence is recorded. The view taken is plausible view. The Trial Court while deciding the suit finally would independently come to the conclusion without being impressed by the order of the lower Appellate Court. 5. In the light of the above in the writ jurisdiction I refrain from interfering with the order passed by the lower Appellate Court and direct the Trial Court to decide the suit within a period of six (6) months from today. The writ petition is accordingly disposed of. No costs. [ S. V. GANGAPURWALA, J. ] bsb/June 11