1 caw1252-11 rpa IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURSIDICTION CIVIL APPLICATION NO. 1252 OF 2011 IN WRIT PETITION NO. 5733 OF 2009 M/s. Evershine Co-op. Housing Society Ltd. .. Applicant V/s. Rafatkhan Nazir Khan & Anr. .. Respondents ..... Ms. Kavita Pawar for the applicant. ..... CORAM : A.S.OKA, J. DATE : AUGUST 3, 2011. P.C.: Not on board. Taken on board. 2. The learned counsel appearing for the applicant submits that there an extreme urgency and therefore the application is immediately taken up for hearing. 3. This is an application filed by the first respondent in the writ petition. Application is for modification of order dated 22nd November 1999 passed by this Court by way of interim relief in the writ petition. 4. The prayer in this application is that the second respondent Mr. George Joseph should be directed to hand over 2 caw1252-11 possession of the flat No.51 to the developer appointed by the applicant to enable the developer to allot permanent accommodation to the said respondent. 5. The respondent No.1 in this application is the petitioner in the writ petition. The respondent No.1 filed a dispute under Section 91 of the Maharashtra Co operative Societies Act, 1960, for declaration that he is entitled to allotment of flat No.11 on second floor of building 'C' of the applicant as and when the same is ready for occupation. The dispute was dismissed by the Co Operative Court and Appeal preferred by the respondent No. 1 was also dismissed. 6. After hearing the parties, following interim relief was granted in the writ petition by this Court on 22nd November, 1999. “ Rule. Respondent No.2 is in possession of flat No. 51 and he will not part with possession or transfer the same in any manner in favour of any third party during the pendency of the petition.” 7. The respondent No.2 is the said George Joseph. The order of this Court suggests that the respondent No.2 in the writ petition Mr. George Joseph is in possession of the flat No.51. The averments made in the present application is that the applicant society tried to convince the second respondent to part 3 caw1252-11 with possession of his flat to the developer. It is alleged that the developer has declined to take over possession of flat No.51. It is contended in the application that only after the second respondent vacates the said flat No.51, the work of redevelopment can be started. 8. The second respondent has not come forward by making any application for vacating the interim relief. If the applicant wants second respondent to vacate the flat No.51, it is for the applicant to take out appropriate substantive proceedings against the second respondent. In a writ petition filed by the original disputant to which the applicant is the opponent, such a drastic relief cannot be granted. The relief sought is beyond the scope of the writ petition. Hence, application is rejected. 9. However, it is open for the applicant to adopt appropriate remedy. (A.S.OKA, J.)