1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.1601 OF 2008 Mahesh Kantilal Bhayani & ors ..Petitioners V/s. Gaurishankar Govardhanlal Todi & ors ..Respondents Mr.P.M.Pradhan i/b.Ms.Leena Patil, advocate, for petitioner Mr.S.K.Chaturvedi i/b.M/s.Chaturvedi & Associates, advocate, for respondent No.5 Mr.A.Y.Sakhare i/b.Mr.Sandesh D. Patil, advocate, for respondent No.6 CORAM : S.C.DHARMADHIKARI, J. DATE : 12TH MARCH, 2008 P.C. . The petitioners are the original plaintiffs. This Writ Petition is directed against the order of the District Judge, Thane in Miscellaneous Civil Appeal No.199 of 2007. The order under challenge dated 18th January, 2008 dismisses the appeal which was directed against the order of 6th Joint Civil Judge, Junior Division, Thane dated 3rd November, 1997 below “Exh.36” in Regular Civil Suit No.933 of 2001. 2. While the suit may be numbered as 1 of 2001, both sides do not dispute that the suit is pending 2 since 1988. It was dismissed earlier and upon an application of the original plaintiff the order dismissing the suit was set aside. 3. Thereafter, the application (Exh.36) was preferred by the petitioners, who were the original plaintiffs for clarification of order dated 7th May, 1988 below “Exh.10”. They also applied for grant of temporary injunction restraining the defendants from utilising DRC/TDR in respect of any portion of the suit property or further creating third party interest therein. The respondent No.5 is the original defendant. Rest of the defendants had not opposed the application. The contesting defendant had pointed out that the suit was of the year 1988 and thereafter, dismissed in default. It was restored on 4th April, 2005. The request of the plaintiff was that during the pendency of the suit there was an order below “Exh.10” directing the defendant to the suit to maintain status-quo. Upon restoration of the suit even this order revives. That plea was opposed by this defendant and ultimately the Trial Court rejected the application 3 not only for clarification but for substantive interim relief. 4. The appeal has also been dismissed. 5. In my view, in the peculiar facts of this case, the larger controversy as to whether the order below “Exh.10” passed by the Joint Civil Judge, Senior Division, Thane revives after the order dismissing in default is set aside need not be considered. More so, when the application below “Exh.36” also prayed for substantive interim reliefs. 6. Mr.A.Y.Sakhare, the learned Senior Counsel appearing for respondent No.6, who is the original defendant makes a statement that DRC/TDR which was available in the suit property has been fully exploited. He has invited my attention to the order of the Appellate Court which is impugned in this case. The Lower Appellate Court in this behalf has observed as under :- “The suit was filed in 1988 and thereafter, the application Exh.36 is filed in July, 4 2007, on the plaintiffs own showing a conveyance is already executed in respect of the suit property. Mutation entries on the basis of conveyance are already made. It is also observed in the impugned order that the municipal corporation has already granted DRC/TDR to the original defendant. The trial court has also rightly observed that, there would be no irrepairable loss which cannot be compensated in terms of money even if the TDR is used. TDR is a saleable commodity. It can be sold and purchased and, therefore, its loss can be compensated in terms of money. The question that was agitated before the trial court appears to be concerning the TDR. In Exh.36 it is only against the original defendant that a prayer for injunction to prevent utilization of DCR/DRC in respect of any portion of the suit property was claimed. That injunction concerning that TDR/DCR etc. was not specifically claimed against the proposed defendants. The reason for doing so is not very clear considering the fact that there was already conveyance as well as mutation in favour of the proposed defendants.” 7. In my view, these observations support the plea of Mr.A.Y.Sakhare that the parties do not dispute that the TDR/DCR has been dealt with, prima facie and conveyance is also executed. 8. That apart, the suit was of the year 1988 and was dismissed in default but revived in the year 2005. The Trial Court and the Appellate Court were in no error in rejecting the request of the 5 plaintiff for interim relief at this belated stage. The observations of the Courts below are tentative and prima facie. They merely record the events during the pendency of the proceedings. As to what effect they would have on the out come of the suit is yet to be decided. The suit is pending. Such tentative and prima facie observations would not prejudice the plaintiff in as much as the plaintiffs have an opportunity to lead evidence and point out that they are entitled to specific performance of the agreement. Such being the case, there is no interference necessary in the impugned orders. Petition is dismissed. 9. However, suit is of the year 1988 and therefore, the Trial Court must endeavour and dispose of the same as expeditiously as possible and within four months from today. Needless to state that the Trial Court to decide the controversy in the suit uninfluenced by any observation at the interlocutory stage. (S.C.DHARMADHIKARI, J.)