1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION APPEAL NO.295 OF 2006 IN NOTICE OF MOTION NO.2365 OF 2003 IN SUIT NO.1356 OF 2003 ... Pinky Properties Pvt.Ltd. ...Appellant v/s. Manjula Kishor Jain & ors. ...Respondents ... Mr.Abdi a/w Ms.Sukeshi Bhandari for the Appellant. ... CORAM: D.K.DESHMUKH & V.R.KINGAONKAR,JJ DATED: 1st April, 2010 P.C.: 1. By this appeal the Appellant who is the original Plaintiff challenges the order dated 24th January, 2006 passed in Notice of Motion No.2365 of 2003. That notice of motion was taken out by the Plaintiff for interim order against the Defendants Nos. 3 to 14.The 2 learned single Judge has dismissed that notice of motion. 2. The relevant facts are that the Plaintiff filed Suit No.1356 of 2003 against the Respondents Nos. 1 & 2 under Section 6 of the Specific Relief Act claiming that they have encroached upon the parking space/land owned and in possession of the Plaintiff. In that suit, Notice of Motion No.1402 of 2005 was taken out by the Plaintiff seeking interim order against Respondents Nos. 1 & 2. The learned single Judge of this Court by order dated 2-5-2003 passed an order restraining the Respondents Nos. 1 & 2 from encroaching upon the land of the Plaintiff. The learned single Judge recorded a prima facie finding that the Respondents Nos. 1 & 2 have no right to park their vehicles in the open premises. Thereafter, it appears that 3 the Respondents Nos. 3 to 14 starting encroaching on the land and parking their vehicles. Therefore, the suit was amended and they were adeed as parties to the Suit as Defendants Nos. 3 to 14. Notice of Motion No. 2356 of 2003 was taken out seeking similar order of temporary injunction against the newly added Defendants Nos.3 to 14. The learned single Judge, however, by his order dated 24-1-2006 dismissed the notice of motion. 3. We have heard the learned Counsel for both sides. We find that the Defendants Nos. 3 to 14, like the original Defendants Nos. 1 & 2, were claiming to be the purchasers of the Shops and in that capacity they were claiming right to park their vehicles in the open space. By order dated 2-5-2003, the learned single Judge of this Court recorded a 4 categorical finding that prima facie the Defendants do not have any right to park their vehicles in the open space. In our opinion, this finding recorded by the learned single Judge in order dated 2nd May, 2003 was binding on the learned single Judge who was deciding Notice of Motion No.2365 of 2003, as there was no change in the circumstances and the Defendants Nos. 3 to 14 were not claiming any right in relation to the open space other than the one claimed by the original Defendants Nos. 1 & 2. In our opinion, the learned single Judge, in view of earlier order passed against the Defendants Nos. 1 & 2, should have followed that order and passed similar injunction order against the Defendants Nos. 3 to 14. The least that should have been done by the learned single Judge was, if he was unable to agree with the finding recorded by the learned single Judge 5 in the order dated 2-5-2003, to refer the matter to the Larger Bench. In no case he can ignore that order and record contrary finding. Following such course of action will impair the judicial disciplines. 4. Taking overall view of the matter, therefore, in our opinion, following order would meet the ends of justice. O R D E R (i)The order impugned in the Appeal dated 24-1-2006 is set aside. (ii)Notice of Motion No.2365 of 2003 is granted in terms of prayer clause (b). (D.K.DESHMUKH, J.) (V.R.KINGAONKAR,J.)