1 ao931 ssp IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION APPEAL FROM ORDER NO.931 OF 2007 Ghisulal S. Rathod ...Appellant vs. M/s.Stonehench Construction ...Respondent Mr.Vineet Naik i/b M/s.Mehta & Girdharlal for the appellant Mr.Virag Tulzapurkar with Mr.Suraj Juneja with Ms Swati i/b Wadia Ghandy for the respondent no.1 Mr.A.R.Patil, A.G.P for respondent no.3 CORAM : A.S.OKA,J. DATE : FEBRUARY 21,2011 P.C.: 1 Heard learned counsel for the appellant and the learned senior counsel for the first respondent. Appeal is directed against the order dated 26 th October 2007 passed by the trial Court by which notice of motion no.36 of 2007 taken out by the appellant (Original plaintiff) for grant of temporary injunction has been dismissed. 2 The substantive prayer in the notice of motion was for grant of temporary injunction restraining the respondents from demolishing the suit structure more particularly described in prayer (a) thereof. The second prayer was regarding appointment of Court Commissioner. 3 It is not in dispute that the suit structure in respect of which interim relief was prayed for in the notice of motion has been already demolished. 4 Hence, the relief claimed in the notice of motion cannot be granted. However, the learned counsel for the appellants invited the attention of the Court to the 2 ao931 orders dated 3rd April 2008 and 26th March 2009 passed by this Court. His submission is that the said orders prevent the first respondent from carrying on construction upon the suit property. He submitted that by continuing the said limited protection, the hearing of the suit may be expedited. The said prayer is opposed by the learned counsel for the first respondent. 5 Perusal of the prayer in the notice of motion NO.36 OF 2002 shows that no injunction was claimed therein for preventing the construction by the first respondent. It is true that the order dated 26 th March 2009 prevents the construction activities by the first respondent. Looking to the nature of the substantive prayer in the notice of motion which as of today cannot be granted, as regards relief of preventing the first respondent from carrying on construction, the appellants will have to take out appropriate proceedings before the trial Court. To enable the appellants to do so, for a limited period, direction contained in the order dated 26th March 2009 deserves to be continued. 6 Hence, I pass the following order : i) The appeal is disposed of as the substantive prayer in the notice of motion no.36 of 2007 has become infructuous. ii)It will be open for the appellants to take out appropriate proceedings for seeking appropriate relief before the trial Court. To enable the appellants to take out appropriate proceedings, it is directed that the first respondent shall not carry on any construction upon the suit property for a period of six weeks from today. iii)It is made clear that the aforesaid protection 3 ao931 will come to an end if the appellants fail to apply for appropriate interim relief before the trial Court within a period of four weeks from today. iv)If any such proceedings for interim relief is taken out, the trial Court shall decide the same as expeditiously as possible and preferably within the period of eight weeks from the date on which the application/proceeding is taken out. It will be open for the appellants to apply for appropriate ad- interim relief in such proceedings. v) All contentions of the parties on merits of the suit are kept open. vi)Fresh application/proceeding taken out by the Appellant shall be decided by the trial Court on its own merits without being influenced by the order impugned or various orders passed by this Court during the pendency of the Appeal. vii)Civil application no.1280 of 2007 does not survive and the same is disposed of. viii)Parties to act upon an authenticated copy of this order. JUDGE