SHOBHA DINESH SUPARE Vs. DINESH NAMDEORAO SUPARE

JUDGEMENT

(1.) THIS appeal against order purported to be filed under Order 43, Rule 1(r) of the Civil Procedure Code, is directed against the order dated 12.8.1991 passed below Ex. 23 by the learned Additional District Judge, Amravati in Misc. Civil Appeal No. 101 of 1990.

(2.) THE respondent/plaintiff filed regular Civil Suit No. 903/1990 praying for declaration and permanent injunction against the present appellants/original defendants. In the civil suit the plaintiff also filed an application under Order 39, Rules 1 and 2 of the Civil Procedure Code praying for temporary injunction restraining the defendants not to interfere, disturb or obstruct or remove in any manner the structure and fittings and machinery and the peaceful possession of the premises and the property held and also not to interfere the business and transaction of the plaintiff and further prayed for prohibitory and mandatory order restraining the defendants and their men from demolishing or removing or damaging in any manner the property and partition. This application Ex.5 was decided by an order dated 4th September 1990 whereby the trial Court has rejected the request.

(3.) BEING aggrieved, plaintiff filed Misc. Civil Appeal No. 101/1990 before the Additional District Judge, Amravati. This appeal has been filed under Order XLIII(1) of the Civil Procedure Code and in substance under section 104 of the Civil Procedure Code. In this appeal he also riled an application Ex. 5 praying for temporary injunction under Order 39, Rules 1 and 2 of the Code of Civil Procedure. The temporary injunction sought for was granted by the learned Additional District Judge on 18.9.1990 and it is still operative. It appears that since in the submission of the plaintiff this ad interim injunction order dated 18.9.1990 was not being obeyed by the defendants/present appellants, contempt proceedings came to be filed by the plaintiff on 9.10.1990 and further the plaintiff also filed an application Ex. 23 before the Additional District Judge praying for giving necessary directions to the respondents in the appeal i.e. present appellants. What has happened further in the contempt proceeding, has not been brought on record of the present appeal. Plaintiff's application Ex. 23 was decided by the order dated 12th August 1991, whereby the learned Additional District Judge held that by virtue of the ad interim injunction order passed in the appeal on 18.9.1990, the appellant/plaintiff was at liberty to remove all the machinery and other things from the premises of the respondent No.1 i.e. present appellant No.2 to any place of his choice. By this order, the learned Additional District Judge also provided police protection to respondent/ plaintiff in the matter of removal of Ata Flour Mill, crushing machine and other associate articles and tins of the tin -shed from the premises of appellant No. 2 to any other place at the choice of the plaintiff. It is this order dated 12.8.1991 passed below Ex. 23 during the pendency of the Misc. Civil Appeal No. 101/1990 filed under section 104 read with Order XLIII, Rule 1(r) of the Civil Procedure Code, which is under challenge in the instant appeal.