1 ao1420-aost19831 ssp IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION APPEAL FROM ORDER NO.1420 OF 2010 Agarwal Construction Co. & Anr. ...Appellants vs. Radhakrishna Gokuldham CHS Ltd. & others ...Respondents WITH APPEAL FROM ORDER ST.NO.19831 OF 2010 Radhakrishna Gokuldham CHS Ltd. & others ...Appellants vs. Agarwal Construction Co. & Anr. ...Respondents Shri V.A.Thorat Sr.Advocate i/b Mr.N.S.Patel & Co. for the appellants in A.O.1420/10 and for respondents in A.O.ST.no.19831/2010 Mr.P.K.Dhakephalkar, Sr.Advocate i/b C.Khambekar for the respondent no.1 in A.O.1420/2010 and Mr.P.K.Dhakephalkar, Sr.Advocate i/b Mr.Kunal Cheema for appellants in A.O.ST. 19831/2010 CORAM : A.S.OKA,J. DATE : MARCH 4,2011 P.C.: 1 Appeal from order no.1420 of 2010 has been preferred by the defendant nos.1 and 2. Appeal from order st.no. 19831 of 2010 is preferred by the original plaintiff. In a suit filed by the plaintiff-society essentially for enforcing statutory obligations under the Maharashtra Ownership Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act, 1963 (hereinafter referred to as the said Act), a Notice of Motion for temporary injunction was taken out. By the order dated 24 th June 2010 Notice of Motion was dismissed. Appeal from Order St. no.19831 of 2010 takes exception to the said order. After dismissal of the said Notice of Motion, original plaintiff filed a fresh Notice 2 ao1420-aost19831 of Motion for temporary injunction in October 2010. On 30 th October 2010, the learned trial Judge granted ad- interim relief in terms of prayer clauses (a) and (c) till the date of filing the reply to the Notice of Motion or till the next date, whichever is earlier. Appeal from order no.1420 of 2010 filed by the first and second defendants takes exception to the said order. 2 The learned senior counsel for the appellants in Appeal no.1420 of 2010 submitted that Notice of Motion on which impugned order has been passed is not maintainable. He submitted that earlier Notice of Motion filed for virtually the same reliefs was dismissed on merits and though the appeal st.no.19831 of 2010 was preferred against the said order, the original plaintiff did not move the said appeal. He submitted that only after carrying out cosmetic amendment to the plaint, a fresh Notice of Motion was taken out in which ad-interim relief has been granted by the impugned order as a result of which the development activities have come to a stand still. He submitted that even in the first Notice of Motion ad-interim relief was declined by the trial Court and the said order was not challenged. 3 The learned senior counsel for the plaintiff submitted that in fact after the first Notice of Motion was heard, a chamber summons was taken out for amendment of plaint which was heard. He pointed out that the Notice of Motion and chamber summons were fixed for passing orders on the same date. He submitted that instead of deciding both the Notice of Motion and chamber summons together, the learned trial Judge dismissed the earlier Notice of Motion and on a subsequent date, made the chamber summons absolute. Therefore, the learned Judge did not consider the amended the plaint while deciding 3 ao1420-aost19831 the first Notice of Motion. He submitted that the plaintiff may be permitted to withdraw the first Notice of Motion. 4 I have carefully considered the submissions. The first Notice of Motion filed by the plaintiff was dismissed on 24 th June 2010. Appeal from order st. no. 19831 of 2010 was preferred on 3 rd August 2010. Instead of prosecuting the appeal from order, in October 2010 the plaintiff has taken out second Notice of Motion on which ad-interim relief has been granted which shows that the plaintiff was never serious in prosecuting the challenge to the order dated 24 th June 2010 on the first Notice of Motion. On the basis of the alleged subsequent events or alleged change in circumstances, said fresh Notice of Motion has been filed by the plaintiff in October 2010. The first Notice of Motion has been decided on merits. The fact that four months thereafter a new Notice of Motion has been taken out shows that the plaintiff virtually accepted the order passed on the first Notice of Motion. After the Notice of Motion has been decided on merits, the same cannot be permitted to be withdrawn. No interference at this stage can be made in the Appeal from Order filed by the plaintiff. 5 As far as Appeal from Order no.1420 of 2010 is concerned, by the impugned order ad-interim relief was granted on 30 th October 2010. The impugned order provides that the ad-interim relief was to operate till the filing of reply to the Notice of Motion or till the next date, whichever is latter. The next date fixed was 24th November 2010. Ad-interim relief has continued to operate till today. Therefore, at this stage no interference can be made with the discreationary order granting ad- interim relief especially when the Notice of Motion is 4 ao1420-aost19831 pending. However, the Notice of Motion will have to be heard within the time schedule fixed by this Court. If reply is not get filed to the Notice of Motion till today, the same shall be filed within a period of twelve weeks from today. 6 Hence, I pass the following order : i) Appeal from Order no.1420 of 2010 is dismissed. ii)Hearing of the second Notice of Motion filed by the plaintiff is expedited. The learned trial Judge shall dispose of the said Notice of Motion as expeditiously as possible and in any event before the end of April 2011. iii)All contentions of the parties on merits of the second Notice of Motion are kept open. iv)The second Notice of Motion shall be decided without being influenced by the impugned ad-interim order and the confirmation thereof by this Court. v) Appeal from Order st. no.19831 of 2010 is dismissed. vi)Civil Application no.1757/2010 and Civil Application st. no.19833/2010 do not survive and the same are disposed of. vii)There will be no order as to costs. JUDGE