1 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. WRIT PETITION NO.: 2157 OF 2011 Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. WRIT PETITION NO.: 2157 OF 2011 *** 1. Heard learned counsel Mr. Damle, holding for Advocate Mr. Kulkarni for the Petitioner and learned counsel Mr. Deshpande for the Respondents. 2. Suit filed by Petitioners is for declaration and for cancellation of lease dated 1st Mary, 1968. In that suit, they sought temporary injunction to restrain present Respondent Nos.1 to 7 from creating any third party interest or from dealing with the suit property in any way to their prejudice during pendency of the suit. That application was rejected by trial Court. That rejection was then questioned by them by filing Misc. Civil Appeal No.183 of 2010. That appeal is also dismissed on 22nd December, 2010 by District Judge-3, Aurangabad. 3. Contention of Advocate Mr. Damle is 2 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. WRIT PETITION NO.: 2157 OF 2011 Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. clause No.3 (e) (f) and (b) of the lease deed are per-se objectionable and unconscionable. Under the garb of lease deed the Respondents are depriving the petitioner of his ownership itself. He, therefore, states that limited restrain on exercise of their rights is essential in the matter and the trial Court as also the Appellate Court have overlooked this aspect. 4. According to Advocate Mr. Deshpande the language of lease deed is very clear and no orders to restrain are necessary. He invites attention to plaint filed in Regular Civil Suit No.1098 of 2004 to point out that there the Nirmiti Construction, a deverloper was also added as party defendant and said developer is not party to present Regular Civil Suit No.529 of 2005. He further contends that after rejection of application at Exhibit-5 in Regular Civil Suit No.529 of 2005 on 19th August, 2009 Misc. Civil Appeal 3 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. WRIT PETITION NO.: 2157 OF 2011 Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. No.183 of 2010 came to be filed by present petitioners. In that M.C.A. as no steps were taken the appeal was dismissed as against present Respondent Nos.3 and 6. Thus, order at Exhibit-5 has become final insofar as Respondent Nos.3 and 6 are concerned. As there cannot be any piecemeal finality, the order has become final in favour of all Respondents and present challenge is, therefore, not maintainable. 5. Advocate Shri Damale points out that Regular Civil Suit No.1098 of 2004 was allowed to be withdrawn with liberty to file fresh suit and accordingly Regular Civil Suit No.529 of 2010 came to be filed. He further points out that cause of action in that suit and present suit is entirely different. 6. The facts clearly show that order passed below Exhibit-5 on 19th August, 2009 in Regular Civil Suit No.529 of 2010 has become final insofar as present Respondent Nos.3 and 4 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. WRIT PETITION NO.: 2157 OF 2011 Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. 6 are concerned. The order, therefore, could not have been varied to their disadvantage in Misc. Civil Appeal No.183 of 2010 by the District Judge-3. Even this Court canny vary that order to their disadvantage. 7. However, looking to the nature of controversy, the interest of petitioner can be protected by directing Respondents to inform the trial Court about the developments or deals which they enter into or undertake in relation to suit property during its pendency. Even otherwise, the provisions of lis-pendens will apply. 8. Hence, with this limited direction to Respondents, to keep the trial Court informed about the deals or developments in relation to suit property, the present writ petition is disposed of. No costs. [B.P.DHARMADHIKARI, J.] Dated:03/05/2011. ans/2157