1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPLICATION NO.2851 OF 2008 IN FIRST APPEAL NO.1959 OF 2007 Odean Theatres (Pvt) Ltd. : Applicants versus Shiv Shaila C.H.S.Limited : Respondents. Shri.D.D.Madan, Senior Counsel with Shri A.A. Joshi i/by Kanga & Co. for the Applicants/Appellants. Shri R.V. Pai for the Respondents. CORAM : R.M.SAVANT, J. DATED : September 17, 2008 P.C. 1. The above Civil Application is filed by the Applicants/Appellants who are the original Plaintiffs, for the following relief:- (a) it be ordered that the original documents exhibited on record on behalf of Appellants a list (Ex.1B') enclosed herewith be returned to the Appellants on usual undertaking to be produced before Court and/or any higher Court, if and when required and called for. 2 2. The above First Appeal, filed by the Applicants, has been admitted by this Court on 10th July 2007 and in the Civil Application for stay being Civil Application No.3176 of 2007 an order came to be passed on the same day and interim relief in terms of prayer clause (a) of the Notice of Motion filed in the suit was granted by continuing the interim order dated 16.9.2002 which was operating in the suit till the decision of the First Appeal. The said interim order in terms of prayer clause (a) of the Notice of Motion reads as under :- “Prayer (a) of the N/M is partly granted and the defendants, their office bearers, their members are restrained from parking their cars in the plaintiffs' property and on the access road. However, it is understood that the restraining order is not for ingress and egress of the members of the defendant and their vehicles.” 3. Return of the documents is inter alia sought for the reasons mentioned in Paras 4 and 5 of the Affidavit filed on behalf of the Applicants by one Abhishek Mangal Prabhat Lodha dated 17th May 2008. The said reasons are to the effect that the Applicants intend to 3 raise loans for the purpose of re-development of the premises and intend to offer the subject property as security towards the same and, since the the negotiations with the lenders are at an advanced stage, nearly at the concluding stage, that the Applicants are praying for the relief sought in the above Civil Application. 4. I have heard the learned counsel for the parties. The learned Senior Counsel Shri D.D.Madan on behalf of the Applicants contended that in terms of Order XIII Rule 9 of the Code of Civil Procedure, the Applicants are entitled to return of the documents for the purpose mentioned in the Civil Application, as the Appeal filed by the Applicants is yet pending and would take some time for its disposal. The learned Senior Counsel further submitted that by return of the said documents no prejudice is likely to be caused to the Respondents as the said documents were filed by the Applicants who are the Plaintiffs in support of their case in the said suit. 5. Per contra, it is submitted by the learned counsel Shri R.V. Pai for the Respondents that in the event this Court orders return of 4 the said documents, it should result in the Respondents' right over a strip of land over which they lay a claim being jeopardised. This apprehension acording to the learned counsel has arisen looking at the purpose for which the return of the said documents is sought. The learned counsel for the Respondents drew my attention to the findings recorded in the Judgment of the trial Court as regards the said strip of land. 6. Having considered the rival contentions, in my view, the Application filed by the Applicants is required to be allowed in terms of prayer clause (a). However, at the same time interest of the Respondents would have to be adequately protected pending the above First Appeal. 7. The Applicants would, therefore, be entitled to be return of the documents mentioned in Exhibit B to the above Civil Application on the Applicants furnishing and placing on record the certified copies of the said documents. The office is directed to furnish the certified copies of the said documents to the Applicants, the costs of which 5 would be borne by the Applicants. Only on the certified copies being placed on record that the office would return the said documents. 8. The Applicants to furnish an undertaking that as and when any of the said documents are required by this Court, they would produce the same within the time stipulated by this Court. The said undertaking tobe filed within four weeks from date. 9. In so far as the Respondents are concerned, as indicated above, by the order dated 10th July 2007 their right to ingress and egress as regards the disputed portion has been protected pending the disposal of the First Appeal. 10. In the event any third party interests or encumbrances are created in respect of the Applicants' property, the said third party or parties would be bound by the said order dated 10th July 2007 and it would be for the Applicants to inform the third party or parties of the said order. The third party or parties would also be bound by the undertaking given by the Applicants in terms of Paragraph 8 as 6 above. With the aforesaid directions, the Civil Application is disposed of. [R.M.SAVANT, J]