1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO. 517 OF 2008 W I T H CIVIL APPLICATION NO. 593 OF 2008 IN APPEAL FROM ORDER NO. 517 OF 2008 Shri Gunwantbhai Damordas Hirani .......Appellant Verus Shri Arjun Thakurdas Nihalani and Ors. ........Respondents ======== Mr.A.S.Khandeparkar i/by.Khandeparkar and associates, adv. For appellant. Mr.Arjun Nihalani, respondent no.1 in person. Mr.A.M.Kulkarni, adv.for respondent no.2. Mr.A.B.Sharma, adv. for respondent no.4. Coram: Smt.R.P.SondurBaldota, J. Dated : 1 st September, 2008. P.C. : 1. This appeal is preferred against the order dated 24th April, 2008 passed rejecting the interim application of the appellant, who is the original plaintiff from restraining respondent no.1 from creating third party interest in the new building constructed and for an mandatory order directing him to reserve premises admeasuring about 1356 sq.ft in the building. The appellant also 2 sought an injunction to restrain respondent no.1 from carrying out any further construction activity unless premises admeasuring 1356 sq.ft is reserved and alloted to him. 2. The appellant has filed the instant suit for specific performance of development agreement allegedly executed on 10th October, 2001 for construction of building of ground plus five floors, in consideration of allotment of premises in the building to be constructed. According, to the appellant, after the building was constructed up to the first floor, the first respondent ran out of money and the construction came to be stopped. The appellant therefore occupied the first floor of the premises. It is alleged that respondent no.1 has since demolished that building and started construction of a new building with the help of respondent no.4. 3. Respondent no.1 denies that he had entered into development agreement with the appellant or agreed to hand over premises in the building constructed. According to him, the appellant was a mere labour contractor. He had misappropriated the money paid by respondent no.1 to him, for construction of the building. 4. The appellant alleges that respondent no.1 has high handedly and 3 illegally demolished the previous building in order to frustrate his claim. Respondent no.1 on the other hand contends that whatever construction that was carried out by the appellant as a labour contractor was of such poor quality that the building became dilapidated within no time. The building had become dangerous for human habitation and respondent no.1 had to perforce pull it down, having called upon by the Corporation to do so. Respondent no1 relies upon the report of the City Engineer, Thane Municipal Corporation, Thane appointed as Commissioner by the court of Civil Judge Senior division, Thane for making report on the condition of the building. The report dated 15th July, 2003 is not only supporting respondent no.1 but it also indicts the contractor who constructed the building without exhibiting quality consciousness and professional ethics. Since the building was required to be demolished by respondent no.1 at the instance of the Municipal Corporation, no fault can be found with respondent no.1. It is also seen that the application filed by the appellant seeking reliefs of injunction was at a very belated stage and the trial court had rightly rejected the explanation offered by the appellant for the delay. The trial court has further considered that the relief of grant of specific performance is a discretionary relief and the appellant has already claimed damages from respondent no.1. In the circumstances, there is no need i to interfere in the order of the trial court. Hence, the appeal from order is dismissed, in limine. 4 5. With the dismissal of the Appeal from Order, the Civil Application does not survive. The same is accordingly disposed off. [Smt.R.P.SondurBaldota, J]