1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO.459 OF 2009 WITH CIVIL APPLICATION NO.553 OF 2009 Mr. Anant Dattatraya Ghosalkar & Ors. .... Appellants Versus M/s.Bhola Sai Developers & Ors. ....Respondents. Mr. S. M. Sakhardande , Counsel with Mr. A.S.Malvankar for the Appellants. Mr. Narendra Walawalkar, Sr.Counsel i/b. Mr. C.A.Patel for the Respondent No.1 & 2. CORAM : R. V. MORE, J. DATED : 23rd APRIL, 2009. P.C. Heard, Mr. Sakhardande, learned Counsel for the Appellants and Mr. Walawalkar, learned Senior Counsel for the Respondents No.1 and 2. 2. The Appellants who are the Original Plaintiffs in S.C.Suit No. 691 of 2009 are challenging the notice under section 354 (A) of the B.M.C. Act. The Appellants/Org.Plaintiffs also filed Notice of Motion (st.) no. 716 of 2009 claiming temporary injunction restraining Respondents/Org. Defendants from constructing, parting with possession or alienating or transferring or creating any third party interest in the suit property. The Appellants/Org.Plaintiffs also claimed urgent ad-interim relief. The Respondents/Org.Defendants opposed the ad-interim relief by 2 making a statement that entire construction is already completed and the flats have been already sold and therefore, the reliefs claimed by the Appellants have become infructuous. In view of the said statement of the Respondents/Org.Defendants, the learned Trial Judge refused the ad-interim relief and adjourned the said Notice of Motion (st.) No. 716 of 2009 for filing reply. 3. Mr. Sakhardande, learned Counsel for the Appellants, submitted that in fact construction is not completed and therefore, there is no question of transferring of the flats. Mr. Walwalkar, learned Senior Counsel, on the contrary re-affirmed the statement made by the Respondents in the Trial Court in this regard. Mr. Walwalkar, learned Senior Counsel for the Respondents also submitted that he will file reply alongwith relevant documents in the said Notice of Motion to substantiate his statement. In the aforesaid facts and circumstances, I do not feel it appropriate to interfere in the impugned order. 4. Mr. Sakhardande, learned Counsel for the Appellants, submitted that this Court can ascertain the factual position by appointing Court Commissioner. This submission cannot be accepted, as the Appellants always can apply to the Trial Court for appointment of Court Commissioner. In the facts and circumstances mentioned above, the Appeal is without any merit and the same is dismissed as such. 5. In view of the dismissal of the Appeal from Order, the Civil Application No.553 of 2009 will not survive and therefore, the same is also disposed of. (R. V. MORE, J.)