fa1050-10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO.1050 OF 2010 M/s.Soaze Patel CHSG Ltd. ..Appellant Vs. Kanjibhai Patel and ors. ..Respondents ......... Mr.R.P.Ojha, for appellant. Mr.S.C.Jodhavat, for respondent no.1 Ms.N.G.Raut, for respondent nos.2 to 6. ......... CORAM: R.G.KETKAR, J. DATE : 5th AUGUST, 2010. P.C. : Heard Mr.R.P.Ojha, learned counsel for the appellant, Mr.S.C.Jodhavat, learned counsel for the respondent no.1.and Ms.N.G.Raut, learned counsel for the respondent nos.2 to 6. 2] Admit. Learned counsel for the respective respondents waive service. 3] Call for Record and Proceedings of the case. Printing is dispensed with. The appellant shall file private paper book along with requisite number of copies and decree forms within one year from today. [R.G. KETKAR, J.] fa1050-10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPLICATION NO.2927 OF 2010 IN FIRST APPEAL NO.1050 OF 2010 M/s.Soaze Patel CHSG Ltd. ..Applicant Vs. Kanjibhai Patel and ors. ..Respondents ......... Mr.R.P.Ojha, for applicant. Mr.S.C.Jodhavat, for respondent no.1 Ms.N.G.Raut, for respondent nos.2 to 6. ......... CORAM: R.G.KETKAR, J. DATE : 5th AUGUST, 2010. P.C. : Heard Mr.R.P.Ojha, learned counsel for the applicant, Mr.S.C.Jodhavat, learned counsel for the respondent no.1.and Ms.N.G.Raut, learned counsel for the respondent nos.2 to 6. 2] Rule. By consent, Rule is made returnable forthwith. 3] The applicant has preferred First Appeal against the judgment and decree dated 29 th April, 2010 passed by the learned Judge, City Civil Court and 1 st Ad- hoc Addl. Sessions Judge, Greater Mumbai Borivali Division, Mumbai in Short Cause Suit No.974 of 2000. By that judgment, the learned trial Judge dismissed the suit instituted by the applicant. The applicant had instituted the said Suit for fa1050-10 declaration that the respondent No.2 herein original defendant no.2 has no right to sell, part with possession and/or induct the respondent no.1 herein defendant no.1 in the suit premises i.e. part of terrace admeasuring about 420 sq. ft. The applicant further prayed that the action of the respondent no.2 in selling and parting with the possession of the suit premises to the defendant no.1 respondent no.1 herein be declared as bad in law and illegal. 4] The respondent no.1 had purchased Flat No.501 situate at 5 th floor of “A” building, Patel Park Co-operative Housing Society under agreement of sale dated 5 th December, 1987. The applicant instituted suit on 10 th February, 2000. Since the said agreement of sale was not registered within the stipulated time, the deed of confirmation was executed on 15 th November, 2000 between the respondent No.1 and the respondent no.6 Patel Builders. Perusal of the agreement of sale and, in particular, clause 2 thereof on internal page No.5 of the agreement, prima facie, discloses that the respondent no.1 had purchased Flat No.501 having carpet area of 66.91 sq. metres (720 Sq.ft approximately) (which is inclusive of area of balconies) on the fifth floor. However, the words “with open terrace”, prima facie, appear to have been inserted subsequently. This position would be clear if the initials made at other places in the agreement are seen. Wherever corrections or blanks are filled in the said agreement, the necessary initials are made. However, in so far as the words “with open terrace” are concerned, prima facie, there are no such initials appearing against these words. 5] During the pendency of the suit, the applicant took out Notice of Motion No.5304 of 2000. By order dated 12 th December, 2002 the prayer (a) of the fa1050-10 said Notice of Motion was rejected. In so far as the prayer (b) is concerned, the same was partly granted to the effect that the respondent no.1 herein, his family members, servants, agents are restrained by an order of injunction from preventing the plaintiffs their servants etc. from entering the suit premises, that is to say, part of the terrace. In the order dated 12 th December, 2002 it was clarified that this is only with a view to repairing or maintaining, drainage lines, antennae and water lines only and both the sides to see that they do not create problems to each other. 6] The applicant also took out another Notice of Motion No.3849 of 2002. Prayer clause (a) of the said Notice of motion was partly granted and the respondent no.1 herein, his family members agents, servants and/or any person or persons claiming through him are restrained from carrying out any further construction on the terrace. 7] Considering the controversy raised between the parties, in my opinion, since this interim order was operating during the pendency of the suit, the interest of justice requires that the same should be continued during the pendency of appeal. In view of this, it is directed that during the pendency of the appeal, a) The respondent no.1 herein, his family members, servants, agents are restrained by an order of injunction from preventing the plaintiffs, their servants etc. from entering the suit premises, that is to say, part of the terrace, only with a view to repairing or fa1050-10 maintaining, drainage lines, antennae and water lines only and both the sides to see that they do not create problems to each other. b) The respondent no.1 herein, his family members agents, servants and/or any person or persons claiming through him are restrained from carrying out any further construction on the terrace. 8] Civil Application is disposed of with no order as to the costs. [R.G. KETKAR, J.]