1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD SECOND APPEAL NO. 1741 OF 2005 Aadhar Shamrao Mali .. APPELLANT VERSUS Lotan Sada Patil & another .. RESPONDENTS Shri C.R. Deshpande, Advocate for the appellant. Shri S.P. Brahme, Advocate for respondent no. 2. ===== CORAM : R. M. BORDE, J. DATE : 11 th August, 2009. PER COURT : 1 Appellant / original defendant is raising exception to the concurrent judgments recorded by the courts below. 2 Respondents / original plaintiffs instituted suit claiming decree of perpetual injunction against the appellant / original defendant restraining him from interfering in possession of land gat no. 534 admeasuring 2 H and 51 R. Trial court on consideration of the case put up by plaintiffs as well as on consideration of the defence raised by the defendant granted decree in 2 favour of the plaintiffs. Judgment and decree passed by the trial court was subjected to appeal at the instance of defendant in Regular Civil Appeal no. 109/2002 which came to be heard and disposed of by the 4 th Adhoc Additional District Judge, Dhule who was pleased to dismiss the same by judgment and decree dt. 6­8­2005. 3 Learned counsel for the appellant contends that the appellant / original defendant has instituted suit bearing Regular Civil Suit no. 130/99 claiming specific performance of agreement alleged to have been executed by the respondents / plaintiffs on 19­9­19963 in his favour. Suit claiming specific performance as well as injunction is pending before the trial court. It is his further contention that there was application presented in the suit at exh. 73 whereupon order has been passed by the trial court directing trial of both the suits i.e. Regular Civil Suit no. 130/99 and 124/98 simultaneously. Inspite of issuance of the order passed by the trial court directing trial of both the suits, the suit wherein claim of injunction has been raised by respondents herein being Regular Civil Suit no. 124/98 was taken up for consideration earlier and same came to be disposed of. Order passed on application exh. 73 presented in Regular Civil Suit no.130/99 has been overlooked. According to learned counsel for the appellant, at trial of suit 3 presented by respondent before considering the issues raised by him in Regular Civil Suit no. 130/99 is likely to cause serious prejudice to the appellant. In such situation, learned counsel for the appellant seeks remittance of the matter back to the trial court. Learned counsel for the respondent has opposed the submissions and has contended that instant suit presented by plaintiff was for perpetual injunction and on consideration of evidence lead by both the parties, the courts below have granted decree of injunction in favour of the plaintiff which has been confirmed by the first appellate court. According to him, the suit presented by defendant being Regular Civil Suit no. 130/99 can proceed and has to be disposed of. In the peculiar facts and circumstances of the case, it would be appropriate to direct the trial court to consider Regular Civil Suit no. 130/99 on its own merit. Both the parties agree that the findings reached in the instant litigation arising out of Regular Civil Suit no. 124/98 would not be an impediment in considering the issues raised in Regular Civil Suit no. 130/99 and the trial court would be at liberty to consider the issues raised in the said suit on its own merit and independently without being influenced by the observations or findings reached in the instant litigation arising out of Regular Civil Suit no. 124/98. With these observations the instant second appeal needs no favourable consideration and stands dismissed. 4 4 In view of dismissal of the appeal, pending civil application, if any, stands disposed of. ( R. M. BORDE, J.) dyb/office/sa1741.05.odt