1 51 caf.4247.10 ndm IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPLICATION NO. 4247 OF 2010 IN FIRST APPEAL NO. 1285 OF 2010 Jiten Subhaprasad Tiwari, Since deceased through heirs: 1a) Shitalaprasad Jiten Tiwari and others. ... Applicants Versus Vijaybahadur Chandrikaprasad Dube. ... Respondent ----- Mr. G.R.Rege i/b Mr. Saurabh M. Railkar for the Appellants. Mr. Ranjit A. Thorat for the Respondent. ----- CORAM : A.S.OKA, J. DATE : 01 st March, 2011. P.C. 1 Heard the learned counsel appearing for the parties. 2 This is an application made by the Appellants, who are the original plaintiffs. The Respondent is the original 2 nd defendant. The suit filed by the Applicants for specific performance of the alleged agreement for sale has been dismissed by the impugned decree and the appeal 2 51 caf.4247.10 preferred by the Applicants against the decree has been admitted. Alongwith the appeal, the Applicants had taken out Civil Application No. 3370 of 2003 for interim relief. The first prayer in the application was for restraining the respondent from dealing with, disposing of or encumbering or creating any tenancy or a lease and from inducting any person into the suit property and/or in the chawl thereon. The second prayer was for restraining the Respondent from carrying out any construction on the suit property. The third prayer was for directing the Respondent to deposit the rent collected by him from the tenants in the chawl. 3 This Court disposed of the application by order dated 15 th October, 2003 by restraining the Respondent from creating third party rights till the disposal of the appeal. 4 The present civil application has been filed on the basis of the alleged subsequent event that in August 2006, the chawl on the suit property came down. A reliance is placed on the report of the fire 3 51 caf.4247.10 brigade. In earlier Civil Application No.3875 of 2006, the statement of the Respondent was recorded that the Municipal Authorities have not granted permission to carry out construction. In the present Civil Application, it is stated that repair permission dated 7 th April, 2010 has been granted by the Municipal Corporation. 5 The learned counsel appearing for the Applicants submitted that the Respondent cannot be permitted to carry out any construction as he is not in possession. He submitted that report of the fire brigade shows that no one was in possession of the chawl. He submitted that in any event, the Respondent cannot be permitted to occupy the reconstructed chawl. 6 I have given careful consideration to the submissions. There is already a relief granted restraining the Respondent from creating third party rights. The said injunction is applicable even to the structure/chawl on the suit property. If the Respondent has committed any breach of the said order of injunction, the remedies of the Applicants are open. 4 51 caf.4247.10 7 If the repair permission granted on 7 th April, 2010 to the Respondent to carry out repairs is illegal, the Applicants will have to challenge the same by filing substantive proceedings. The suit filed by the Applicants for specific performance of the suit property has been dismissed. There is no finding recorded that the Applicants are in possession. In fact, from the very nature of the relief claimed in Civil Application No.3370 of 2003 filed by the Applicants, it is apparent that the Respondent is in possession. Otherwise, there was no occasion for the Applicants to seek relief restraining the Respondent from creating third party rights and from carrying on construction. As long as there is a permission granted for carrying out repairs, the Respondent cannot be prevented from acting upon the permission. Even if acting upon the permission, work is carried out by the Respondent, it will not create any equity in his favour and the construction will be subject to final outcome of the appeal. Moreover, the Respondent has been already restrained from creating third party rights and therefore, he will not be entitled to create any third party rights in respect of the structure of the chawl. Even if the 5 51 caf.4247.10 Respondent occupies the chawl, it will not create any equity in his favour. The appeal is likely to remain pending for more than one decade considering the pendency of old appeals in this Court. Therefore, the Respondent cannot be prevented from using the suit property and structure thereon. 8 Hence, no case is made out for grant of any interim relief as prayed and subject to what is observed earlier, the application is disposed of by passing the following order: i. The repair work/construction carried out by the Respondent on the suit property in terms of repair permission will be subject to final outcome of the appeal and no equity will be created in favour of the Respondent on the ground that he is permitted to carry out the work ; ii. If any unauthorized work is carried out by the Respondent, it will be open for the Applicants to adopt appropriate remedy ; iii. It is made clear that interim relief granted on 15 th October, 2003 in Civil Application No.3370 of 2003 continues to operate till the disposal of the appeal 6 51 caf.4247.10 and it will operate even in respect of the structures on the suit property ; iv. There will be no order as to costs. [ A.S.OKA, J ]