WP 13867 of 2024 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.13867 OF 2024 Kisan Shivram Modhave, Age : 65 Years, Occ. Agri. r/o. Wakodi, Tq. and Dist. Ahmednagar and others ..Petitioners Vs. Asha Subhash Pimpale, Age : 48 Years, Occ. Agri., r/o. Wakodi, Tq. and Dist. Ahmednagar and others ..Respondents ---- Mr.V.C.Solshe, Advocate for petitioners Mr.Rajendra Deshmukh, Senior Advocate i/b. Mr.Kunal Kale, Advocate for respondent no.1 Mr.K.B.Jadhavar, AGP for respondent nos.2 to 6 ---- CORAM : AJIT B. KADETHANKAR, J. DATE : SEPTEMBER 15, 2026 ORDER :- Heard both sides. 2. Feeling aggrieved by the judgment and order passed by learned District Judge-5, Ahmednagar in Misc. Civil Appeal No.178 of 2022 on 29.07.2024, the petitioners have presented this Writ Petition. Vide impugned order, learned District Judge-5, Ahmednagar, has 2026:BHC-AUG:42814 2 WP 13867 of 2024 confirmed the order passed by learned Civil Judge, Senior Division, Ahmednagar on application Exh.5 in Regular Civil Suit No.147 of 2022 dated 01.12.2022. 3. Suffice it to note that the trial court had allowed the application for temporary injunction filed by the plaintiff/present respondent and directed to reopen the pathway pursuant to the order passed in R.T.S. Appeal no.125 of 2003. Prayer clause 16 - A in the plaint reads thus:- १६) अ दाव्यातील कथनास व हकिकगतीस अनुसरून प्रतितवादी नं. ३ यांनी आर टी. एस. अपील नं. १२५/२००३ (रस्ता के स) मध्ये किद. १२/१२/२००३ रोजी किद. २७/११/२००३ रोजीचे स्थळकिनरिरक्षण पंचनामा व स्थळकिनरिरक्षण किटपणीमधील नकाशा प्रमाणे मौजे वाकोडी शिशवारातील 'नगर वाकोडी रोडलगतचे गट नं. १८३ मधून वादी यांना मंजूर के लेला रस्ता व प्रतितवादी नं. ४ मे. तहसिसलदार साहेब, अहमदनगर यांनी किद. २४/१/२०२२ रोजी प्रतितवादी नं. ६ ते १० यांनी किद. १६/८/२०२१ रोजी बेकायदेशिशरपणे जौसीबीने खड्डा करून व काटया टाकू न अडकिवलेला रस्ता खड्डा मुरुम टाकु न बुजवून खुला करून देणेकामीचा आदेश प्रतितवादी नं. ४ व ५ यांना आदेश देववावा. 4. In the suit, an application under Order XXXIX Rules 1 and 2 of the Code of Civil Procedure came to be filed seeking mandatory injunction in terms of the prayer clause 16-A of the plaint till the disposal of the suit. After hearing both the parties, the trial court 3 WP 13867 of 2024 vide order dated 01.12.2022 allowed the application and by interim order, issued temporary injunction to open the disputed the pathway pursuant to the order passed in R.T.S. Appeal No.125 of 2003. Feeling aggrieved by the interim injunction the petitioners/defendants had been to the District Court. After hearing the parties the District Court concurred with the findings of the trial court and hence, the petitioners/defendants are before this court. 5. Mr.Solshe, learned advocate for the petitioners would invite my attention to prayer clause No.16-A of the plaint and the operative clause no.2 in the impugned order dated 01.12.2022. His contention is that by granting the temporary injunction the trial court has virtually passed the final order which is to be passed in the suit. His submission is that under the interim order in fact the suit itself is decreed in its terms. With this submissions, Mr.Solshe, learned advocate prays to allow the Writ Petition and to quash and set aside both orders. 6. Mr.Deshmukh, learned senior advocate appearing for the respondents would support the findings rendered by the trial court and the first appellate court. He would take me through order passed by the Tahsildar, Ahmednagar in Rasta Case No.5 of 2003. He would submit that since 20.10.2023 his clients are enjoying the 4 WP 13867 of 2024 usage of the disputed pathway under the orders of Tahsildar, Ahmednagar and hence the trial court is absolutely justified in passing the impugned order. With this submission, Mr.Deshmukh, learned senior advocate prays to dismiss the Writ Petition. 7. considered the submissions advanced by learned advocates for the parties. 8. Apparently, if the text of prayer clause 16-A in the plaint are compared with the impugned order dated 01.12.2022 at clause 2, it appears that by virtue of the interim order, the final relief in the suit is granted by the trial court. I am of the confirmed view that such exercise is not permissible. The trial court ought not to have granted such temporary injunction which virtually decrees the suit without any trial. In view of this, the Writ Petition deserves to be allowed. 9. Hence, the Writ Petition is disposed of in terms of the following order:- A) The order dated 01.12.2022 passed by learned Civil Judge, Senior Division, Ahmednagar, on Application Exh.5 in Regular Civil Suit No.147 of 2022 and the judgment and order dated 29.07.2024 passed by learned District Judge-5, Ahmednagar in M.C.A. No.178 of 2022 is quashed and set aside. 5 WP 13867 of 2024 B) Considering the nature of litigation which is pending between the two adjoining land holders, the trial court is requested to conclude the suit proceeding expeditiously and preferably within a period of eight months from the date of this order. C) It is clarified that this court has not commended on the merit of the case of either parties. D) All contentions are kept open. [AJIT B. KADETHANKAR, J.] ……….. KBP