SM 1 7.ao.408.11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO. 408 OF 2011 WITH CIVIL APPLICATION NO. 576 OF 2011 IN APPEAL FROM ORDER NO. 408 OF 2011 Kandivali Samir Co-op. Hsg. Socy. Ltd. ....Appellant. Versus Dhirendra Monji Tanna ....Respondent. ____________ Mr. Shipad Murty i/b Piyush Shah for the Appellant. Mr. Rajiv Narula i/b Jahangiani Narula & Associates for the Respondent No. 1. Mr. Rayan D’Souza and Kalpesh Mehta and Vasim Shaikh i/b Pravin Mehta & Mithi Co. for the Respondent No. 2. Ms. K. K. Soraan for Respondent No. 3-BMC. CORAM: R. M. BORDE, J. DATED : OCTOBER 10, 2011. P.C.: In this Appeal from Order challenge is to the order passed by the Judge, City Civil Court on 16th March, 2011 in Notice of Motion No. 1321 of 2010 in L .C. Suit No. 518 of 2010. The Notice of Motion presented by the appellant/original plaintiff came to be dismissed by the Trial Court. This Court, while directing issuance of notice directed the parties to maintain status quo and the order passed by this Court is in operation till today. 2. This Appeal from Order can be disposed of by directing the Trial Court to decide the pending suit expeditiously and on its SM 2 7.ao.408.11 own merits and after considering the rival contentions of the parties. It is agreed by the respondent/developer that compulsory open space would be kept vacant and will be made available as per the plan submitted in the Court. The open space as shown in the plan admeasures 3.60 mtrs. surrounding the building. According to the developer, the extent of open space surrounding the building which is required to be kept open is in accordance with the D.C. Regulations. The developer has tendered a written undertaking that a new building in the place of whole structure would not be constructed without securing appropriate sanction from the planning authority/ municipal corporation. The respondent/ developer has also undertake not to utilise the TDR and FSI of 628.28 sq.mtrs. allowable in respect of the building belonging to the plaintiff-society. The respondent/developer would be permitted to carry out the construction activities subject to the terms and conditions stated in the undertaking and subject to approval of plan from the municipal corporation. The undertaking should be filed within a period of one week from today. 2. The Trial Court shall proceed to decide the suit in accordance with the provisions of law and after extending an opportunity of hearing to all the parties concerned. It is specifically made clear that all the contentions those can b e raised before the learned Judge, City Civil Court are, specifically, kept open and this court has not expressed any opinion touching merits of controversy involved in the suit. The Trial Court shall decide the suit expeditiously and preferably within a period of six months from today. SM 3 7.ao.408.11 3. The plaintiff may tendered an application seeking amendment to the plaint and the Trial Court may consider such an application if tendered, on its own merits. 4. Appeal from order is disposed of. Pending Civil Application, shall stands disposed of accordingly. (R. M. BORDE, J.)