Bombay High Court

KISAN SHIVRAM MODHAVE AND OTHERSversusASHA SUBHASH PIMPALE AND OTHERS

Disposal: DISPOSED OFF

Holding

The trial court erred in granting a temporary injunction that amounted to a final decree; the orders are quashed.

Summary

The petitioners, adjoining landholders in Wakodi, Ahmednagar, challenged a temporary injunction granted by the trial court that ordered the opening of a disputed pathway, arguing that the injunction effectively amounted to a final decree in the underlying civil suit. The trial court had allowed the injunction on an application under Order XXXIX of the Code of Civil Procedure, citing a prior R.T.S. Appeal order. The respondents contended that the injunction was proper and that they had been using the pathway since October 2023. The High Court held that a trial court cannot, by an interim order, grant the substantive relief that the suit seeks, as this bypasses a full trial. Consequently, the Court quashed both the trial court’s interim order and the appellate court’s confirmation, directing the trial court to conclude the suit within eight months without commenting on the merits.

Issues considered

Can a trial court, by granting a temporary injunction, effectively pass the final decree of a civil suit?
Is the interim order granting the injunction ultra vires and liable to be set aside?
Is the writ petition maintainable to quash the trial court and appellate court orders?

Legislation cited

Code of Civil Procedure, 1908 — s. Order XXXIX Rules 1 and 2

Subjects

temporary injunction
interim order
final decree
civil procedure
land dispute
writ petition
quash order
jurisdiction

Judgment

2026:BHC-AUG:42814

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
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 हकिगतीस अनुसरून प्रतिवादी नं. ३
यांनी आर टी. एस. अपील नं. १२५/२००३ (रस्ता केस)
मध्ये दि. १२/१२/२००३ रोजी दि. २७/११/२००३ रोजीचे
स्थळनिरिक्षण पंचनामा व स्थळनिरिक्षण टिपणीमधील नकाशा
प्रमाणे मौजे वाकोडी शिवारातील 'नगर वाकोडी रोडलगतचे गट
नं. १८३ मधून वादी यांना मंजूर केलेला रस्ता व प्रतिवादी नं.
४ मे. तहसिलदार साहेब, अहमदनगर यांनी दि. २४/१/२०२२
रोजी प्रतिवादी नं. ६ ते १० यांनी दि. १६/८/२०२१ रोजी
बेकायदेशिरपणे जौसीबीने खड्डा करून व काटया टाकून
अडविलेला रस्ता खड्डा मुरुम टाकु न बुजवून खुला करून
देणेकामीचा आदेश प्रतिवादी 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

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