1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY IN THE HIGH COURT OF JUDICATURE OF BOMBAY IN THE HIGH COURT OF JUDICATURE OF BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION WRIT PETITION NO.7150 OF 2008 M/s.Arthur Frank & Ors. ..Petitioners. V/s. Patel India Pvt.Ltd. ..Respondent. Mr.Rajeev Patil i.b. Mr.Sachin S. Punde for petitioners. Mr.Abhay Abhyankar, Sr.Counsel with Prashant Chavhan i/b. Madekar & Co. for Respondent. CORAM: A.M.KHANWILKAR,J CORAM: A.M.KHANWILKAR,J CORAM: A.M.KHANWILKAR,J DATE : JANUARY 21, 2009. DATE : JANUARY 21, 2009. DATE : JANUARY 21, 2009. P.C. : P.C. : P.C. : 1. Heard Counsel for the parties. 2. Having gone through the opinion expressed by two Courts below, as the present Petition is directed against concurrent finding of fact, no interference in exercise of writ jurisdiction is warranted. 3. According to the Petitioners, the present suit was barred by principle of res judicata. This objection has been considered by the Appellate Court in paragraph-13 of the impugned Judgment and in my view, the Appellate Court has rightly adverted to the ground pressed into service in the former suit. 2 Indeed, in that suit the ground was of change of user, but the allegation was that the change of user was from "office" to "dance class", which has been negatived. Whereas, in the present suit decree is sought on the allegation that the premises which were originally let out for business purpose are being used for residential purpose. The Court below has analysed all the relevant materials on record to record finding of fact on the material aspects. As aforesaid, that is a concurrent view taken by the two Courts below. 4. The learned Counsel for the Petitioners had argued that it was not open to the Appellate Court to decree the suit on the ground of change of user, as no such issue was framed before the trial Court. Even this aspect is elaborately considered by the Appellate Court and rightly rejected. I am in agreement with the opinion of the Appellate Court that non-framing of issue does not militate against the Plaintiff- as the parties fully understood the case and produced evidence to substantiate their respective stand. The view taken by the Appellate Court is supported by the exposition of the Supreme Court referred to in the impugned Judgment. In my opinion, no interference is warranted. Hence 3 dismissed. 5. At this stage, Counsel for the Petitioners prays that operation of this order be stayed so as to enable the Petitioner to carry the matter in appeal. Counsel for the Respondent has no objection if reasonable time is granted provided all the partners of the petitioner firm were to file usual undertaking within one week from today. Accordingly, it is ordered that decree shall not be given effect to for a period of 8(Eight) weeks from today on all the partners of the Petitioner filing usual undertaking, failing which it will be open to the Respondent to proceed with the execution of the decree. 6. Counsel for the Respondent submits that besides the terms to be noted in the usual undertaking, the Affidavit shall also state that in the event, the Petitioners fail before the Apex Court, they will hand over vacant and peaceful possession of the suit premises to the Respondent on or before 30th April, 2009 or on the date to be specified by the Supreme Court in the proposed appeal, without requiring the Respondent to resort to execution of the decree. 4 7. Although the Petitioners have resisted for imposition of this condition, I am in agreement with the submission of the Respondent that if the Petitioners are to be shown any indulgence, they should be put to such term, being reasonable condition. Ordered accordingly. (A.M.KHANWILKAR,J) (A.M.KHANWILKAR,J) (A.M.KHANWILKAR,J)