ASN 1 Appeal-827.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION APPEAL LODGING NO.827 OF 2010 IN NOTICE OF MOTION NO.2103 OF 2009 IN SUIT NO.1335 OF 2000 Froz Fakhruddin Tinwala. ..Appellant. Vs. Husain Taherali Changi and ors. ..Respondents. Mr. Nishant Sasidharan and Mr.Raj Mehta i/by M/s. RKM Legal Services for the Appellant. Mr. S. Shamim for Respondent No.1. CORAM : MOHIT S. SHAH, C.J. AND S.J. VAZIFDAR, J. Tuesday, 1 st March, 2011 PC : This appeal is directed against the order dated 23rd September, 2010 passed by the learned Trial Judge of this Court allowing Notice of Motion No.2103 of 2009 restraining the original defendants from disposing of, transferring, alienating and parting with possession of the suit flat in any manner. 2 The learned counsel for the appellant states that original defendant No.2 was served and he appeared before the Trial Court on the date of hearing of the suit on 26th August, 2010. However, on the ASN 2 Appeal-827.sxw date of passing the impugned order, defendant No.2 could not attend the Court on account of his illness. However, his son was present in Court. The defendant No.2 also could not file his affidavit in reply and therefore, Notice of Motion was allowed against him without his case having been represented by the learned Trial Court. The learned counsel for the respondent submits that the appellant was given sufficient time and therefore, this Court should not interfere with the impugned order. 3 Having heard the learned counsel for the parties, interest of justice will be served if the appellant-original defendant No.2 will be given an opportunity of filing his affidavit in reply and appearing before the learned Trial Judge at the time of hearing of the notice of motion, provided the appellant pays respondent No.1- original plaintiff costs of this appeal which is quantified at Rs.10,000/- (Ten thousand). The costs shall be paid as condition precedent. The impugned order is accordingly, set aside. The Notice of Motion No.2103 of 2009 be heard by the learned Trial Judge afresh. Till the final disposal of Notice of Motion, ad interim order passed by the Trial Court on 23rd September, 2010 will continue to operate. 4 In the result, appeal is allowed. The impugned order dated 23rd September, 2010 is set aside and the Notice of Motion No.2103 of 2009 is remitted to the learned Trial Judge for fresh hearing on merits after giving appellant an opportunity to file his affidavit in reply, which shall be done within three weeks from today, subject to payment of costs. The costs shall be paid within two weeks from today. ASN 3 Appeal-827.sxw 5 Appeal stands disposed of in the above terms. 6 It is clarified that we have not gone into the merits of the controversy between the parties and all the contentions of the parties are left open. CHIEF JUSTICE S.J. VAZIFDAR, J.