1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION WRIT PETITION NO.1232 OF 2010 Shrimanta Ramchandra Bhosale & Ors. ...Petitioners vs. Dastagir Sayyad Mulla ...Respondent Mr.Sanjay Jain a/w Roshan Pinto i/b Mr.Nivit Shrivastava for the petitioners Mr.Vijay Killegar for the respondent CORAM :A.S.OKA,J. DATE : MARCH 2, 2010 P.C. 1 Heard the learned counsel for the petitioners and the learned counsel for the respondent. The petitioners who are the original defendants preferred an appeal challenging the order dated 18 th July 2007 passed by the trial Court. Application at Exhibit-5 for temporary injunction made by the respondent-plaintiff was allowed on 5 th June 2007. Thereafter, an application was made by the petitioners at Exhibit-31 under Rule 4 of Order XXXIX of the Code of Civil Procedure,1908. The prayer in the said application at Exhibit-31 was for variation of the order passed below the application at Exhibit-5. The said application under Rule 4 of Order XXXIX of the said Code was rejected by the trial Court by order dated 18 th July 2007. An Appeal is maintainable against the said order under clause (r) of Rule 1 of Order XLIII of the said Code. 2 The submission of the learned counsel for the petitioners is that the Appellate Court has not considered the merits of the appeal and without assigning any reasons, the Appeal has been dismissed. The learned 2 counsel for the respondent submitted that the petitioners have not chosen to challenge the original order and therefore, the Appellate Court was justified in dismissing the Appeal. 3 I have considered the submissions. I have perused the submissions. I have perused the impugned Judgment and Order. Perusal of the impugned Judgment shows that in the first 8 paragraphs of the Judgment, the learned District Judge has narrated the facts. In paragraph 9 of the Judgment, again facts have been set out. Paragraphs 10 and 11 reproduce the submissions of the learned counsel for the parties. Only other paragraph is the paragraph 12 which reads thus : 12 From the aforesaid facts and evidence in the form of documents and affidavits, the scope of rules 1,2,4 of Order XXXIX of the CPC and the facts enumerated herein above, the order of the learned lower Court is perfectly legal, proper and correct and needs no interference by this Court in exercise of jurisdiction under Order 43 of the Civil Procedure Code. Therefore, the arguments advanced by the learned counsel for the appellants/defendants are not sound and acceptable. On the other hand, the arguments advanced by the learned counsel for the respondent/original plaintiff are well founded and sound. In the result, the appeal is without any merits and the same is liable to be dismissed with costs. In the sult, affirmative findings are recorded on above point no.1. 4 Thus, the only reasoning of the learned District 3 Judge is that the arguments of the Advocate for the petitioners are not sound and the arguments of the Advocate for the respondent are well founded and sound. There are no reasons assigned for rejecting the submissions of the petitioners. The Appellate Court could not have decided the appeal in this fashion without recording any reasons. The Appellate Court has not done its duty and therefore, the only order which can be passed in this Writ petition is of remanding the Appeal for fresh hearing. 5 Hence I pass the following order : i) Impugned Judgment and Order dated 2 nd May 2008 is quashed and set aside. ii)Miscellaneous Civil Appeal No.96 of 2007 is restored to the file of the District Court. iii)Parties are directed to appear before the learned District Judge-1, Sangli on 12 th April 2010 at 11.00 a.m. iv)The Appeal shall be heard and decided afresh in accordance with law. An endeavour shall be made to decide the Appeal finally on or before 31 st August 2010. v) All contentions of the parties in the pending Appeal are kept open. vi)Writ Petition is partly allowed in above terms. JUDGE