1 wp 3928.11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 3928 OF 2011 Pramod S/o Bhagwanrao Mandlik, Age : 43 Years, Occu. : Service, R/o Nanalpeth, Parbhani. .. .. Petitioner Versus Deelip S/o Ramchandrarao Mane, Age : 45 Years, Occu. : Business, R/o Nanalpeth, Parbhani. .. .. Respondent Shri P. N. Sonpethkar, Advocate for the Petitioner. Shri M. M. Patil (Beedkar), Advocate for the Respondent. CORAM : S. V. GANGAPURWALA, J. DATE : 06TH JULY, 2011. ORAL JUDGMENT : . Rule. Rule returnable forthwith. With the consent of parties taken up for final hearing. 2. Shri Sonpethkar, the learned counsel for the petitioner states that the present petitioner/original plaintiff had filed a suit for injunction restraining the respondent from interfering in 2 wp 3928.11 his possession. The Trial Court allowed the application for temporary injunction vide order dated 20 th December, 2009. The respondent preferred miscellaneous civil appeal which came to be dismissed and the writ petition filed by the respondent against the said judgment is pending before this Court. The learned counsel submits that when the order of injunction was in force, the respondent in utter violation of said injunction order dispossessed the petitioner. As such, the petitioner had filed civil miscellaneous proceedings bearing C. M. A. No. 168/2011 and in the said proceedings an application was filed U/Sec. 151 of the Code of Civil Procedure for restoration of possession. The learned counsel states that the Trial Judge has erroneously rejected the said application. The learned counsel submits that if a person is dispossessed in violation of the prohibitory orders, then the Court has got powers to restore the possession. For the said purpose the learned counsel relies on the judgment of Apex Court in a case of Meera Chauhan Vs. Harsh Bishnoi & Anr. reported in 2007(2) Civil Court Cases page 01. The learned counsel submits that the Trial Judge has failed to exercise its jurisdiction vested in it while holding that the application is not maintainable in the said proceedings. 3 wp 3928.11 3. Shri Patil, the learned counsel for the respondent submits that, the order does not suffer from any illegality in as much as the Court has observed that unless and until the enquiry is conducted no orders can be passed. The Court can order restoration in main proceedings itself and not in the application in which an enquiry regarding disobedience of the order is being conducted. 4. The proposition that if in violation of the prohibitory orders a person is dispossessed, he can apply for restoration during the pendency of suit itself need not be dilated. 5. The proceedings in which the application for restoration of possession was filed was a proceeding U/O 39 Rule 2-A as a miscellaneous proceedings. The Trial Judge was right in observing that unless and until an enquiry is conducted the orders for delivery of possession cannot be passed. 6. The Court has powers to grant restoration of possession during the pendency of the suit, if the Court comes to the conclusion that the petitioner has been dispossessed in violation of the prohibitory orders. 4 wp 3928.11 7. In view of the above without addressing on the merits of the matter it is observed that the petitioner is entitled and is at liberty to file an application in the same suit invoking inherent powers of the Court for restoration of possession based on the avernments made in the application in which the impugned order is passed. If such an application is filed the Trial Judge shall consider the same on its own merits. If such application is filed the same shall be disposed of as expeditiously as possible. The Rule is made absolute in terms of above observations. Sd/- [ S. V. GANGAPURWALA, J. ] bsb/July 11