1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION APPEAL NO.573 OF 2009 IN NOTICE OF MOTION NO.2017 OF 2009 IN SUIT NO.855 OF 2001 Saga Department Stores Ltd. .... Appellant Vs. Falak Home Developers Pvt. Ltd. .... Respondent Mr.F. Devitre, Senior Advocate i/by B. Amin & Co. for appellant. Mr. S.U. Kamdar, Senior Advocate with Mukul Fally, Ms. Pooja Patil, Mr.Shaikh Yusuf Ali & Prakash Misar i/by S. Mohammedbhai & Co. for respondent. Coram : D.K. Deshmukh & Smt.R.P. SondurBaldota, JJ. Date : 10th June, 2010 P.C. 1. By this appeal, the appellant challenges the order dated 17th September 2009 passed by the learned Single Judge of this Court in Notice of Motion No.2017 of 2009. That motion was taken out by the appellant restraining the defendant from proceeding with the hearing of the L.E.C. Suit No.6/12 of 2003 pending in Small Causes Court. The present suit is filed by the plaintiff-appellant for decree of specific performance of an agreement to sale the property. The suit in the Small Causes Court is a suit filed by the defendant for the decree of eviction treating 2 the plaintiff-appellant as licensee. It is common ground before us that in the present suit, only written statement has been filed, whereas the suit in Small Causes Court has made considerable progress and recording of evidence is also over. In this situation, therefore, in our opinion, it will not appropriate to grant an injunction restraining the defendant from proceeding with the L.E.C. Suit in the Small Causes Court. If the decree of eviction is passed against the appellant in these circumstances, in the small Causes Court, the appellant has remedies available against that decree in the Small Causes Court. In case, if the possession of the appellant is threatened, he can always move this Court by taking out Notice of Motion in this suit for protection of his possession and therefore, in our opinion, it will not be appropriate to interfere with the order. A grievance was made before us that certain observations made by the learned Single Judge in his order dated 17th September 2009, may operate against the appellant in the event, he takes out Notice of Motion for protection of his possession in this suit. In our opinion, the grievance made is not well founded,because the observations have been made by the learned Single Judge in his order for the purpose of deciding the Notice of Motion taken out for grant of temporary injunction restraining the defendant from proceeding with the suit in the Small Causes Court and therefore those observations 3 are relevant only for that purpose and cannot operate against the appellant in case the appellant takes out Notice of Motion for protection of his possession in this suit. That motion would be decided on the basis of the material produced before the Court without being influenced by anything in the order dated 17th September 2009 passed in Notice of Motion No.2017 of 2009. 2. The appeal disposed of. 3. In view of disposal of the Appeal, the Notice of Motion No.4207 of 2009 does not survive, the same is accordingly disposed of. (Smt.R.P.SondurBaldota,J) ( D.K.Deshmukh, J.)