1 srk app-L-22-11.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION APPEAL (LODGING) NO.22 OF 2011 IN NOTICE OF MOTION NO.639 OF 2010 IN SUIT NO.2769 OF 1987 Zarir Edi Mahava ... Appellant Versus Roda Feroz Engineer and others. ... Respondents Mr. Vinod Thakker for the appellant. Mr. Ivor Peter D'Cruz for respondent No.1. CORAM : MOHIT S. SHAH, C.J. & S.J. VAZIFDAR, J. Friday, February 04, 2011 P .C. What is challenged in this appeal is the order dated 21st December, 2010 of the learned trial Judge dismissing the notice of motion taken out by the appellant-plaintiff No.1B for an interim injunction to restrain the respondent No.1 from preventing the appellant from entering into the suit premises. 2. The appellant's case was that he was in joint possession of the suit flat and that only in August, 2009 defendant No.1 restrained the appellant from entering the suit flat and, therefore, the notice of motion was taken out in March, 2010. 2 srk app-L-22-11.sxw 3. The learned trial Judge has dismissed the notice of motion on the ground that after filing the suit in 1997, the original plaintiff died in the year 1990 and after 17 years, the heirs including the appellant moved this Court for setting aside the abatement and for bringing the heirs on record. 4. The appeal court granted relief on 23rd November, 2009 and further required the parties to go for trial of the suit within six months. 5. The learned trial Judge has dismissed the notice of motion mainly on the ground that, "It is too late in the day to grant the plaintiffs the mandatory relief by way of an interim order in the suit filed 23 years ago and in which the present plaintiffs have been brought on record 17 years after the death of the predecessor-in-title". The learned trial Judge has also observed that the plaintiffs relied upon a letter dated 27th August, 2009 claiming the relief in respect of the key. Thereafter, the order of the appeal court has been passed in November, 2009. 6. The learned counsel for the appellant-plaintiff No.1B assails the above order on the ground that the delay in moving the Court for setting aside the abatement could not have been taken into consideration by the learned trial Judge as the appeal court had set aside the abatement 17 years after the death of the predecessor in title. It is further submitted that the learned trial Judge has not given specific finding that the appellant was not in joint possession of the suit flat till August, 2009. 7. Having heard the learned counsel for the appellant and the learned counsel for respondent No.1 (original defendant No.1), we are of the view that on the basis of the material on record, it is not possible to grant any interim 3 srk app-L-22-11.sxw relief to the appellant at this stage. The appellant has not furnished any proof to indicate his possession of the said premises at any stage. 8. At the same time, having regard to the pressure of work on the learned trial Judge, we do not propose to suggest that the suit be heard and decided within six months. 9. In the result, we leave it open to the appellant to take out a fresh notice of motion relying upon material, if any, to indicate his possession. If such a notice of motion is taken out, the learned trial Judge shall decide the same in accordance with law without being influenced by the impugned order. 10. It is clarified that this order or the above observations may not be treated as an expression of opinion on the merits of the controversy between the parties. Appeal accordingly, stands disposed of. CHIEF JUSTICE S.J. VAZIFDAR, J.