vss IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION APPEAL NO.247 OF 2008 APPEAL NO.247 OF 2008 APPEAL NO.247 OF 2008 IN NOTICE OF MOTION NO.911 OF 2008 IN SUIT NO.2832 OF 2006 Sunil Choudhari & Anr. ... Appellants V/s. Continuous Stationery Pvt. Ltd. & Ors. ... Respondents Mr.A.C. Singh i/b Anil Yadav for Appellants Mr.Virag Tulzapurkar a/w Ms.Alpana Ghone for Respondent No.1 CORAM: S.B. MHASE & S.B. MHASE & S.B. MHASE & SMT.NISHITA SMT.NISHITA SMT.NISHITA MHATRE, JJ. MHATRE, JJ. MHATRE, JJ. DATED: JULY 8, 2008 JULY 8, 2008 JULY 8, 2008 P.C.: P.C.: P.C.: . This appeal can be disposed of finally at the admission stage. The order passed by the learned Single Judge in Notice of Motion No.911 of 2008 in Suit No.2832 of 2006 on April 30, 2008 is under challenge. The appellant has filed the said Motion for the following reliefs: (a) ... (b) pending the hearing and final disposal of the Suit, the Defendant No.1 be restrained to carry out any renovation and/or alteration and/or addition and/or demolition inclusive of any structural changes on the suit property and/or structures existing on the said suit property. (c) pending the hearing and final disposal of this Notice of Motion, the Defendant No.1 be restrained to carry out renovation and/or alteration and/or addition and/or demolition inclusive of any structural changes on the suit property and/or structures existing on the said suit property. (d) ... 2. Thus, by these reliefs, the appellants wanted to : 2 : have an injunction as against the defendants that they shall not renovate or alter the property. It appears that meanwhile Defendant NO.1 has introduced a third party by way of leave and licence and Defendant No.1 made a statement that neither Defendant No.1 nor their licencees shall carry out any alteration or renovation and/or demolition in the suit premises without the permission of Defendant No.2, namely, the MIDC. That statement was accepted by the learned Single Judge and, therefore, it was observed that in view of the statement made by the Counsel for defendant No.1, nothing survives in the Notice of Motion. Hence, the Notice of Motion was disposed of. The learned Counsel for the appellant now contended that the statement made by Defendant No.1 that that he or his licencee shall not carry out the renovation, etc. without the permission from Defendant No.2 is misleading. Because if the Defendant No.2 grants permission for renovation, demolition, etc. ultimately, Defendant No.1 or his licencee is entitled to carry out those renovations, etc. and thereby the purpose of the Notice of Motion is frustrated. He submitted that inspite of this statement being made by Defendant No.1, the Motion still survives and it was an error on the part of the learned Single Judge to show that nothing was surviving in the Motion. The learned Counsel Mr.Tulzapurkar opposed the submissions made by the appellant. He submitted that his client is carrying : 3 : out the renovations after getting permissions from the MIDC. He also states that the Notice of Motion 2231 of 2008 has already been taken out before the learned Single Judge challenging the permission granted by the original Defendant NO.2 and therefore, the appellants can have redressal of their grievances in that Motion. 3. We find that the disposal of Motion No.911 of 2008 by the learned Single Judge is not proper. The appellants had filed the suit for specific performance of the property and, therefore, they desire to maintain the property as it is and where it is till the disposal of the suit. They desire that there should not be any encumberance and entry of a third party and/or if the property is renovated, it will be one additional ground in favour of the respondent owner to claim refusal of the specific performance. Therefore, such a Notice of Motion was filed. Instead, indirectly by accepting the statement of Defendant No.1, the Court has granted permission to renovate the property after getting the permission from the original Defendant No.2 and thus, indirectly the Motion has been frustrated and/or denied. This aspect has not been considered by the learned Single Judge when the Motion was disposed of. Since indirectly permission is there on record it will create difficulties for the appellants in the other Motion where the permission granted by the MIDC is challenged : 4 : by the present appellants. Perhaps the arguments as against that will be foreclosed on the ground of the earlier statement being accepted by the learned Single Judge that no renovation, alteration will be carried out without the permission of Defendant No.2. Now in accordance with that accepting the statement of Defendant No.1 the renovation permission has been granted and, therefore, it may not be open for the appellants to challenge that in the Motion, which is pending before the learned Single Judge. 4. We, therefore, find that the appellant is justified in challenging the Motion so as to protect the other Motion which he has filed before the learned Single Judge. We find substance in the contentions raised by the appellant. Therefore the order of disposal of the Motion on 30.4.2008 is set aside and we hold that the Motion still survives. We make it clear that the statement made by Defendant No.1 which has a tendency to defeat by circumvention the Motion taken out by the appellant is hereby not accepted and therefore we request the learned Single Judge to hear this Motion earlier to the Motion No.2231 of 2008 and thereafter dispose of the same. 5. Appeal allowed accordingly. : 5 : (NISHITA MHATRE, J.) (S.B. MHASE, J.)