1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO.627 OF 2009 WITH CIVIL APPLICATION NO.819 OF 2009 Shree Ram Co-operative Housing Society Ltd., ..Appellants V/s. M/s.Reward Real Estates P. Ltd., ..Respondents ---- Mr.V.A.Thorat Sr.Advocate i/by R.A.Thorat for the appellants. Mr.P.K.Samdani Sr.Advocate @ Chetan Kapadia and Thomas Karimianal i/by Paras Kuhad & Associates for the respondents. ---- Coram : R.S.MOHITE,J Date : 23rd July, 2009. PC 1 This is an appeal filed by the original defendant against an ad-interim order passed in a suit filed by the present Respondent. The plaintiff has filed the suit on 13.6.2009 claiming a permanent injunction restraining the defendant from obstructing or interfering with the plaintiffs ingress and egrees to its property through the property of the defendant. It is their case that this right was being enjoyed by them since 1979. The road in question is the only motorable road available from S.V. Road to the property of the plaintiffs being CTS No.416 and 416/1 to 8. There was no declaration sought in the plaint. It was the case of the plaintiffs that on 16.6.2009 the defendant put up a wall of about 2 feet height blocking the said road which they were enjoying prior to the putting of the wall. By the 2 impugned order though no mandatory injunction was prayed for the defendant was directed to remove the wall subject to the final order to be passed on the Notice of Motion on merits. The plaintiff was directed to produce copy of the map and the defendant was injuncted from obstructing the plaintiff from using the internal road of the defendant/society where the wall was constructed by the defendant. 2 In so far as grant of mandatory relief, without there being a prayer, in my view, the same ought not to have been granted. However, it is a common ground that the wall in question has now been demolished by the Corporation. It is therefore, not necessary to dwell upon that aspect further. In so far as the injunction against the defendant, not to obstruct the plaintiff from using access to the plaintiff’s property to the internal road of the defendant, I have perused the averments in the plaint. I am informed that a Chamber summons is taken out for giving further particulars. However, the map which is referred to in the impugned order as an annexure to the lease deed, indicates some right of way. There is a dispute as to whether this right of way as shown in the plan would entitle the plaintiff for the reliefs sought. In my view, however since the impugned order is passed prior to the filing of the reply, it would not be proper to make any observation on the merits specially as I am informed that the Chamber summons and Notice of Motion have now to come up before the trial Court on 27.7.2009. In the circumstances, I am not inclined to entertain this Appeal from Order and the same is rejected. However, it is made clear that the observation made in this order will not be taken into account by the trial Court and the trial Court will decide the Motion on its own merits. At this stage, Counsel appearing for the appellant seeks extension of the stay which was granted by the trial Court. The stay firstly pertained to demolition of the wall. That wall has now already been demolished. 3 The 2nd part of the stay permitted access on foot. In my view, continuation of this stay will prima facie, render the property inaccessable by a vehicle. No grant of such a stay will also not prejudice to the defendant because entire matter can be considered when the Motion is disposed off on merits. Prayer for continuation of stay is therefore, rejected. (R.S.MOHITE,J)