1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTIION FIRST APPEAL NO. 1158 OF 2008 FIRST APPEAL NO. 1158 OF 2008 FIRST APPEAL NO. 1158 OF 2008 IN B.C.C.C. SUIT NO. 1109 OF 2003 Ashwin Ravji Chheda & Anr. ... Appellants Vs. Deepak Ravji chheda ... Respondent (Org. Plaintiff) Mrs. Rekha Shinde, Advocate, for the appellants. Mr. P.M.Shah, Advocate, for the respondent. CORAM: J.H.BHATIA,J. CORAM: J.H.BHATIA,J. CORAM: J.H.BHATIA,J. DATE: 10th July, 2008. DATE: 10th July, 2008. DATE: 10th July, 2008. P.C. P.C. P.C. 1. Heard learned Counsel for the parties. 2. S.C.Suit no.1109 of 2003 was filed by the plaintiff/respondent against the defendants/appellants alleging that the defendants had no right to carry on commercial activities in the garrage and they were not entitled to store the articles in the compound, viz. open space of the Deepak Bungalow which is a residential property. It appears that this was because 2 the property is not to be used for commercial purpose. 3. In the Suit, Notice of Motion No.979 of 2003 was taken out by the plaintiff. It appears that due to certain understanding between the parties, the Notice of Motion as well as the suit came to be disposed of by judgment dated 3.3.2007. The Judgment also reveals that Mr. P.S.Shah, learned Advocate for the defendants, had made a statement before the Court that the defendants Nos. 1 and 2 shall file affidavits that the parties shall not store the articles of any nature whatsoever in the compound of Deepak Bungalow and shall not make use of the northern side garage, save and except for parking vehicles. However, the defendants were at liberty to make necessary application before the Corporation for getting appropriate permission for conducting commercial activities in the northern side garage, if so desired. Accordingly, the final order came to be passed. However, in para 8 of the said judgment, the trial Court framed issue No.1 as follows :- "1. Whether the plaintiff proves that the defendants have no right to carry out commercial activities in the garage and the defendants are not entitled to store the articles in the compound, namely open space of 3 Deepak Bungalow ?" This issue was replied in the affirmative. 4. The learned Counsel for the defendant also contends that in view of this position, the defendants may not be granted any permission by the Municipal Corporation for carrying out any commercial activities in the northern side garage. According to the Counsel, this issue and the finding were unnecessary for the purpose of disposal of the suit with consent of the parties. 5. After some discussion at the Bar, the learned Counsel for the plaintiff-respondent also concedes that issue No.1 and the finding thereof may be deleted from the judgment and the parties shall abide by the final order passed by the trial court. 5. Therefore, in the interest of justice, the Appeal stands disposed of with the following directions :- Issue No.1 and the finding thereon in para 8 of the impugned judgment shall be deemed to have been deleted. The parties shall abide by the final order passed therein. 4 (J.H.BHATIA,J.) (J.H.BHATIA,J.) (J.H.BHATIA,J.)