1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO.844 OF 2002 IN NOTICE OF MOTION NO.39 OF 2002 IN S.C.SUIT NO.5038 OF 2001 WITH WRIT PETITION NO.784 OF 2005 Bhupendra Maganlal Shah ..Appellant V/s Bharat, s/o. Kevalchand Solanki .Respondent ---- Mr.S.P.Dubey i/by Ms.Nita Dubey for the appellant. Mr.R.A.Thorat i/by S.K.Dubey for the respondent. ---- Coram : R.S.MOHITE,J Date : 28th August, 2009. PC 1 This is an Appeal filed by the original plaintiff in S.C.Suit No.5038 of 2001 pending before the Bombay City Civil Court. The appeal is filed impugning an order dated 29.8.2002 dismissing the plaintiff’s Notice of Motion No.39/2002. The reliefs sought by the plaintiff in his Notice of Motion were as follows :- (a) That pending the hearing and final disposal of the suit, the Defendant and/or his mother-Ratnabai K.Solanki or any other person claiming through or under him/them be restrained by an order and injunction restraining him/them from entering upon the 2 premises viz. Shop no.197/1, Lakhia House Opp. Govandi Police Station, Station Road, Govandi, Bombay-400 088 alongwith the mezsanine floor, and first floor and/or attend the business of Amit Medical & General Stores conducted therefrom and from residing therein, as if it belong to him/them in any manner whatsoever and acting upon the Power of Attorney in any manner whatsoever ; (b) That pending the hearing and final disposal of the suit, the Defendant and/or his mother or any other person claiming through or under him, be restrained by an order and injunction restraining him/them from dealing with, disposing off, alienating encumbering or parting with possession of premises viz. Shop No.197/1, Lakhia House, Opp. Govandi Police Station, Station Road, Govandi, Bombay-400 088 alongwith the mezzanine floor and first floor and/or the business viz. Amit Medical & General Stores, as if it belongs to him ; (c) That pending the hearing and final disposal of the suit, the Defendant and/or his mother Ratnabai K.Solanki or any other person claiming through or under him, be restrained by an order and injunction restraining him/them from obstructing and/or interferring with the plaintiff and/or any of his family members emering the premises and carrying on the business of Amit Medical and General Stores from Shop No.197/1, Lakhia House, Opp. Govandi Police Station, Station Road, Govandi, Bombay-400 088. 2 It may be stated here that earlier, by an order dated 5.10.2004 this Court allowed this appeal in the absence of the respondent and granted prayer clause-(c) in Notice of 3 Motion No.39/2002. As a consequence of this order the appellant came into possession of the suit premises. Later on, on an application made by the respondent this order dated 5.10.2004 came to be re-called by subsequent order dated 25.1.2005 and this order recorded that the appellant was now in possession of the suit premises and would remain in possession till the Appeal from Order was decided afresh. It is therefore, not in dispute that today appellant is in possession of the suit premises. The factual position regarding the suit is now that the evidence of the plaintiff has been led and plaintiff has closed his evidence. The evidence of the defendant is listed to commence tomorrow i.e.on 29.8.2009. I have also perused the record. It is the case of the defendant that he is the sub-tenant of the plaintiff. Admittedly, there are no rent receipts. The sub-tenancy is alleged to have been created on 1.6.2001. The plaintiff has produced some documents in the trial Court which indicate that he applied for a job as a Pharmacist with the plaintiff in July-2001 and was given a job under an appointment letter. This document, if proved at the trial, would have a direct bearing on the claim of sub-tenancy. Though the averments of the plaintiff indicate that the defendant was residing in the upper part of the premises, on a joint reading of the earlier paragraphs, it appears to be his case that he was forcibly dis-possessed just prior to filing of the suit. It is his case that he had filed a police complaint but instead of helping him the police threatened him. 3 In this background, without making any observations on the merits and as the suit has reached the stage of evidence, I am inclined to allow the appeal on the basis of the prima facie material as also taking into account the fact that the appellant is today in possession. Appeal is therefore, allowed. It is made clear that the suit will be decided strictly on the basis of evidence adduced by the parties without being influenced by any 4 observation which is made in the impugned order or this order. Appeal from Order stands disposed off. 4 In view of disposal of main appeal, Civil Application No.1084/2002 and Civil Application No.299/2005 does not survive and stand disposed off accordingly. WRIT PETITION NO.784 OF 2005 5 Advocate for the petitioner states that as the suit has been dismissed, Writ petition No.784/2005 has become infructuous and stands disposed off as infructuous. (R.S.MOHITE,J) 5