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 APPEAL FROM ORDER NO.228 OF 2006 WITH CIVIL APPLICATION NO.52 OF 2006 Mr.Mohammed Khan Dawood Khan. ..Appellant. V/s. M/s.Shradha Enterprises. ..Respondent. Mr.Vinay J. Hegde for appellant. Mr.A.H.Palekar with Smita Ghade for respondent. CORAM: A.M.KHANWILKAR,J CORAM: A.M.KHANWILKAR,J CORAM: A.M.KHANWILKAR,J DATE : JUNE 28, 2006. DATE : JUNE 28, 2006. DATE : JUNE 28, 2006. P.C. : P.C. : P.C. : 1. Heard counsel for the parties. Perused the relevant documents on record. 2. The Court below has declined to grant interim relief in favour of the appellant/plaintiff, essentially on the reasoning that the proceeding taken out by the applicant suffers from latches and delay. That view taken by the trial Court is a possible view. It is well known position that delay defeats equity. Grant of interim relief by court of equity can be considered only if litigant has approached with utmost dispatch. Viewed thus, no fault can be found with the lower court for having 2 refused interim relief. 3. Counsel for the appellant however, relies on the decision of the Apex Court in the case of Rambhau Rambhau Rambhau Namdeo Gajre V/s. Narayan Bapuji Dhotre, reported in Namdeo Gajre V/s. Narayan Bapuji Dhotre, reported in Namdeo Gajre V/s. Narayan Bapuji Dhotre, reported in 2005 (2) Bom.C.R.315. 2005 (2) Bom.C.R.315. 2005 (2) Bom.C.R.315. This decision deals with the principle regarding purport of section 53(A) of the Transfer of Property Act. In the present case, I am concerned with the issue whether the appellant can be heard to complain about any wrong or breach committed by the respondent when the proceeding taken out by the appellant suffers from latches. The answer to this is against the appellant. Accordingly, this appeal should fail. 4. Counsel for the appellant submits that in that case limited indulgence may be shown to the appellant by observing that any steps taken by the respondent in respect of the suit property will be subject to the outcome of the suit pending before the lower Court and that the respondent will not claim any equity. Once again, it is well known position that eventually, if the trial Court accepts the claim of the appellant that Court will have to pass all consequential orders, as may be warranted in the situation. The appellant has already claimed relief 3 of removal of entire building to be constructed by the respondent in terms of prayer clause (b). The trial Court naturally, will consider that relief and pass necessary order. Besides, principle of lis pendence will apply to the suit property. The appellant will be free to take such steps, as may be required to invoke lis pendence. 5. During the course of the argument counsel for the respondent informs that the construction of the entire building has been completed and third party interest have been created in respect of the respective flats, possession whereof has already made over to the concerned purchasers. It is stated that the respondent has no tenements in the said building for creating third party right. It will be open to the appellant to ask for further relief for amendment to suit in view of the subsequent development, as may be advised. That aspect will be considered by the trial Court on its own merits in accordance with the law. Appeal as well as civil application dismissed on the above terms. 6. It will be open to the trial Court to consider the request for expediting hearing of the suit, if made, on its own merits in accordance with 4 the law.