-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION Writ Petition No.4510 of 2007 M/s Sapre Engineering Works ..Petitioner vs. 1. M/s Technofour & Ors. ..Respondents Shri P.S.Dani for petitioner Shri G.S.Godbole i/b Shri S.S.Kanetkar for respondents. CORAM: S.C.DHARMADHIKARI J. CORAM: S.C.DHARMADHIKARI J. CORAM: S.C.DHARMADHIKARI J. 15th January, 2008 15th January, 2008 15th January, 2008 P.C. P.C. P.C. 1. This writ petition is directed against the order passed by the lower Appellate Court on 27th April, 2007 allowing the appeal preferred by the respondents before me and setting aside the order dated 26th May, 2006 passed by the 8th Joint Civil Judge, Sr.Dn. Pune below Exh.5 in Reg.Civil Suit No.645 of 2006. 2. It is not necessary to refer to the plaint allegations in detail save and except stating that the suit property is described in para 1(a) and (b) of the plaint. In so far as para 1(a) is concerned i.e. final plot no.87/C which is the approach road. That property is described in para 1(a) of the plaint. Injunction that is -2- claimed is in terms of the final order in the suit. The petitioner who is original plaintiff claims interim injunction restraining defendant no.1 from obstructing the partners, servants, agents in using the property which is approach road. By order passed on 26th May, 2006, the Trial Court granted the said injunction and restrained defendant no.1 its partners, servants and agents from temporarily obstructing the plaintiff the use of the said access road. 3. Several contentions have been advanced before the lower Appellate Court and one of the arguments which found favour with the lower Appellate Court is that the plaintiff/petitioner before me did not disclose that defendant nos.1 and 2 to the suit were earlier joint owners and subsequently defendant no.2 sold its undivided share in the suit land to defendant no.1. It is also suppressed that the plaintiff is consenting party to the document. The second objection that was raised and which has found favour with the lower Appellate Court is that the original plaintiff/petitioner before me is not espousing its own cause. In fact, the road referred to is the private road. There are others who are interested in the subject matter but the same -3- are not parties before the Court. It is not the plaintiff who can, therefore, seek any relief. 4. That is a plea which has been reiterated even in the affidavit in reply filed before me. My attention is invited to the affidavit of Pravin Vinayak Dhole filed in this writ petition and more particularly the pleas therein with regard to M/s Shree Associates. 5. When this matter was argued for some time considering the controversy involved I brought it to the notice of Shri Dani that it was for the plaintiff to take appropriate decision in the light of the contents of the affidavit in reply. I also indicated to him that in absence of all pleas being placed on record it would not be proper for the parties to go ahead and even contest the suit. 6. Shri Dani after taking instructions from the petitioner/original plaintiff makes a statement that the original plaintiff would apply for amendment to the plaint and to enable him to do so this Court should pass appropriate orders so as to preserve the status quo at site. Shri Dani also makes a request that there is ongoing -4- construction work on final plot no.84 and third floor slab is being led presently. In such circumstances, for the construction material to be carried to the site, approach road should not be closed by defendant no. 1 taking advantage of the Appellate Court’s order. 7. Shri Godbole appearing for defendant no.1 is not opposing the request of the plaintiff to move for amendment of the plaint but has strong reservation to any order being passed enbling the construction material to be carried at site. After taking instruction from Shri Pravin Dhole, the deponent of the affidavit in reply, Shri Godbole makes a statement that until further orders from the Trial Court the first defendant would not in any manner construct upon the disputed portion described in para 1(a) of the plaint nor encumber or part with the same. 8. In my view, it is not necessary to go into the rival contentions. Since the petitioner/original plaintiff is seeking an opportunity to move the Trial Court for amendment of the plaint and to enable him to do so and to apply for appropriate orders even the first defendant has agreed to keep the portion -5- vacant unencumbered and without any interest being created therein, the proper course would be to dispose of this writ petition by recording the statement of the petitioner/original plaintiff that necessary application for amendment would be moved within a period of two weeks from today. Based upon the amended pleas it would be open for the petitioner/original plaintiff to apply for such interim orders as are necessary and in the interest of justice. However, it would not be possible for me to accede to the request of Shri Dani to allow the construction material to come to the site from the said approach road. While the lower Appellate Court having already declined to grant any interim relief with regard to the said portion directing that the petitioner would be able to take their construction material by using the said approach road would mean that indirectly the Trial Court order is being confirmed. That can only be done by entering into the controversy on merits even at the prima facie stage. Since I have declined to do so at the request of the parties it would not be fair to permit the petitioner to put in use the said portion. The request in that behalf is declined. However, declining of the said -6- request by this Court does not mean that the petitioner upon amendment being carried out is prevented from applying for such a relief. If such relief is applied for it is for the Trial Court to take note of the same and pass interim orders as are permissible in law after hearing both sides. Needless to state that the first defendant has not made any concession for amendment to be incorporated nor he consented to the amendment proposed by the original plaintiff. Petition is disposed of. (S.C.DHARMADHIKARI J.) (S.C.DHARMADHIKARI J.) (S.C.DHARMADHIKARI J.)