-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION Writ Petition No.4610 of 2007 with Appeal from Order No.825 of 2006 with Civil Application No. 1142 of 2006 in A.O.No.825 of 2006 with Misc.Civil Appeal No. 132 of 2006 and Writ Petition No.8708 of 2006 M/s H.A.Lele ..Petitioner vs. Dr.Shubhangi Madhavrao Ambre ..Respondent Shri R.S.Apte i/b Shri Mandar Limaye for petitioner. Shri N.P.Deshpande for respondent. CORAM: S.C.DHARMADHIKARI J. CORAM: S.C.DHARMADHIKARI J. CORAM: S.C.DHARMADHIKARI J. 10th January, 2008 10th January, 2008 10th January, 2008 P.C. P.C. P.C. 1. This writ petition is directed against the order of the lower Appellate Court dated 10th April, 2007 by which the appeal preferred by the petitioner being Misc.Civil Appeal No.336 of 2006 has been rejected. 2. From the perusal of the order it appears that the lower Appellate Court at the prima facie stage has concurred with the Trial Court and considering the limited right that the -2- petitioner/developer has refused to grant injunction against the owner/respondent before me. In such circumstances, the order under challenge does not require any interference. Petition is dismissed. However, Reg.Civil Suit No.388 of 2006 and Special Civil Suit No.1080 of 2006 shall be decided uninfluenced by any observations of the lower Appellate Court so also of the Trial Court. Appeal from Order No.825 of 2006 Appeal from Order No.825 of 2006 Appeal from Order No.825 of 2006 3. In so far as the appeal from order no.825 of 2006 is concerned, there is ad-interim order granted by this Court on 22nd February, 2007. That pertains to the watchman’s cabin and material of the appellant/original plaintiff in Special Civil Suit No.1080 of 2006. The order of statusquo to continue pending hearing and final disposal of that suit without prejudice to the rights and contentions of both sides in so far as the merits are concerned. Appeal from order disposed of by keeping open all contentions on merits. 4. Civil Application No.1142 of 2006 in A.O.No.825 of 2006 is disposed of. -3- Misc.Civil Application No.132 of 2006 Misc.Civil Application No.132 of 2006 Misc.Civil Application No.132 of 2006 4. Misc.Civil Application has become infructuous and hence dismissed as infructuous, if not already dismissed. Writ Petition No.8708 of 2006 Writ Petition No.8708 of 2006 Writ Petition No.8708 of 2006 5. This is a petition challenging the order passed below Exh.49 in Reg.Civil Suit No.388 of 2006. 6. That is an interlocutory order in as much as the learned Judge has refused to discard the commissioner’s report but at the same time has protected the petitioner/original defendant in that suit by granting liberty to cross examine the Commissioner when the report is being admitted in evidence. In the light of this observation so also the Court Commissioner being already appointed in the petitioners’ suit namely Special Civil Suit No.1080 of 2006, there is no reason to interfere with the impugned order. The petition is accordingly dismissed. -4- Shri Apte makes a grievance that the Court Commissioner appointed has not carried out the inspection and commission work. He has been prevented by the original defendant in Special Civil Suit No.1080 of 2006. Shri Deshpande after obtaining instructions from the respondent/defendant who is present in Court states that the respondent/original defendant has applied for review of the order below Exh.10 in Special Civil Suit No.1080 of 2006 passed on 13th November, 2006 and that review application is pending. Interest of justice would be subserved if it is directed that this review application should be heard and disposed of within a period of 4 weeks from the date of receipt of copy of the order of this Court. All contentions of both sides in the said review application are kept open. Needless to state that depending upon the outcome of the review proceedings and challenge to the same at the instance of the respondent/defendant, in any higher Court, the respondent/defendant shall allow the Court Commissioner to carry out the Commission work if the order of the Trial Court in that behalf is confirmed. The parties are agreeable that the Special Civil Suit No.1080 of 2006 and Reg.Civil Suit No.388 of 2006 be -5- consolidated and disposed of together as evidence in both the matters is likely to be common. The Trial Court to take necessary steps and consolidate the suits. The Trial Court to then consider expeditious hearing of the suits considering limited controversy between the parties. Petition is disposed of. (S.C.DHARMADHIKARI J.) (S.C.DHARMADHIKARI J.) (S.C.DHARMADHIKARI J.)