1 ssp IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION APPEAL FROM ORDER NO.1258 OF 2009 WITH CIVIL APPLICATION NO.1573 OF 2009 Vijay Anant Nagwekar & Ors. ...Appellants vs. Vinayak Vasant Nagwekar & Ors. ...Respondents Mr.V.K.Sawant for the appellants Mrs.Rita Bhatia with Mr.Ambarn Saheed for the respondent no.1 Mrs.K.K.Soraan for respondent no.2-B.M.C. CORAM : R.C.CHAVAN,J. DATE : JULY 19, 2010 P.C.: 1 This appeal is directed against the order passed by the learned Judge of the City Civil Court on a notice of motion in Long Cause Suit no.100192 of 2008 thereby the learned Judge rejected the Notice of Motion. 2 It cannot be disputed that the Appellants and the Respondents nos.1 to 9 are the owners of the building on which some of the Respondents permitted the respondent no.10-B.P.L.Ltd to erect a mobile tower. As of date, permission from Respondent no.11-Municipal Corporation is not shown to have obtained for such activity. According to the Appellants-plaintiffs since the property is jointly owned and has not been partitioned, the Respondent nos.1 to 9 or any of them could not have allowed the respondent no.10-B.P.L.Ltd to erect any tower and could not have entered into an agreement with the B.P.L.Ltd. An affidavit was filed on behalf of the Respondent nos.1 to 9 by the Respondent no.1 Vinayak 2 Vasant Nagwekar. After considering the reply, the learned trial Judge rejected the Notice of Motion. The principal ground on which the Notice of motion has been rejected is that the Respondents pointed out to the Court that the Appellants have never paid any taxes which were due on property and to avoid auction of the property, the Respondents had to pay the taxes. It was also stated that the Appellants did not contribute for paying dues on the property and in order to generate funds, the Respondents had to induct B.P.L.Ltd for erecting the tower. These grounds seem to have been weighed before the learned trial Judge. The learned trial Judge therefore rejected the Notice of motion. 3 I have heard the learned counsel for the Appellants. If it is taken for a while that the appellants are co- owners of the property and therefore, without leave of the other co-owners, same co-owners could not have created interest in the property, it would harm the Appellants as well. The question is whether such creation of interest causes any irreparable loss to the plaintiffs. The learned counsel for the Appellants submitted, on being questioned twice that irreparable loss is by being kept out of share of earning from the contract with the B.P.L.Ltd. If that be so, that could have been taken care of by ordering the Respondents to deposit the amount received from the B.P.L.Ltd with the trial Court and permitting the parties to apply for withdrawal of the amount. In fact the B.P.L.Ltd is a party-defendant before the court and could itself deposit the amounts with the court. The amounts which may be deposited could be withdrawn by the parties by seeking leave of the court. Therefore, there is nothing to show that the interests of plaintiffs cannot be taken care of or cannot the protected without grant of 3 injunction restraining the proposed activity. Proposed activity can go on and also the interest of the plaintiffs can be protected by directing the Respondent-10-B.P.L.Ltd which is defendant before the court to deposit the amount due. Considering the amounts required for payment of taxes and other dues the Court could deal with requests for withdrawal by partners after hearing the parties. This will be of course subject to the B.P.L.Ltd obtaining permission from the Respondent-B.M.C. 4 The learned counsel for the Respondents submits that if such arrangement is made it would be beyond the pecuniary jurisdiction of the Court as the jurisdiction of the City Civil Court is restricted only up to Rs.50 thousand. It is not question of recovering money by the plaintiffs from the defendants, but it is a question of defendants entitlement to receive money under the contract to the Court, as a condition for refusal of injunction. Therefore, jurisdictional issue does not arise. There is no question of grant of stay of this order since there is no injunction operating in favour of the Appellants. Appeal is disposed of. 5 Considering the nature of controversy involved, the learned trial Judge will endeavour to hear and decide the suit expeditiously. 6 In view of disposal of the Appeal, Civil Application does not survive and the same is disposed of. (R.C.CHAVAN,J.)