ASN 1 Appeal-1064.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION APPEAL NO. 1064 OF 2010 IN NOTICE OF MOTION NO.3566 OF 2009 IN SUIT NO.2262 OF 2009 Bijendra Ramkailash Singh. ..Appellant. Vs. Hinduja Foundation and 7 ors. ..Respondents. Mr. Navin Parekh, Advocate with Mr. V.S.Bhorge for the Appellant. Dr. Virendra Tulzapurkar, Sr. Advocate with Mr. Kapil Moye i/by M/s. Crawford Bayley & Co. for Respondent Nos. 1 to 7. CORAM : MOHIT S. SHAH, C.J. & S.J. KATHAWALLA, J. MONDAY,DECEMBER 13, 2010. PC : The appeal is directed against an order dated 7th September, 2010 passed by the learned Trial Judge dismissing the Notice of Motion No.2566 of 2009 taken out by the appellant-plaintiff in suit No.2262 of 2009 subject to directions given by the learned Trial Judge to the respondents-defendants in Paragraph-9 of the order under appeal. 2 The appellant-plaintiff has filed the above numbered suit for a declaration that the Gift Deed dated 15th February, 1972 is vitiated by ASN 2 Appeal-1064.sxw fraud and is invalid and for declaration that the plaintiff-appellant is entitled to possession of the suit plot as an executor of the Will dated 2nd May, 2005 executed by Ramkishordas Sadhanwala who died on 14th June, 2007. The appellant-palintiff has also prayed for a decree of possession. In the notice of motion, the appellant prayed for an injunction to restrain the respondents from carrying on and continuing to carry on any construction of a structure/building on the suit land which is inconsistent with the right, title and interest of the appellant-plaintiff in relation to the suit land. The appellant-plaintiff also prayed for injunction to restrain the Greater Mumbai Municipal Corporation from granting any further permission to carry out any construction on the suit land or any other Act which is inconsistent with the right, title and interest of the plaintiff over the suit land. The appellant also prayed for injunction to restrain the defendants from using in any manner the FSI of the suit land. 3. The application seeking ad interim relief was rejected on 21st March, 2003. When the notice of motion came up for hearing, the learned Trial Judge noted that the appellant-plaintiff’s predecessor himself had filed Civil Suit No.424 of 2003 in the City Civil Court at Mumbai and the notice of motion in the said suit was rejected by the City Civil Court on 21st March, 2003. The Appeal from order therefrom was admitted but no interim relief was granted and the Letters Patent Appeal against the order refusing interim relief was dismissed. Even the Special leave Petition filed by the appellant-plaintiff came to be dismissed by the Apex Court on 15th December, 2003 and ultimately the civil suit was withdrawn on 21st November, 2006 with liberty to file a ASN 3 Appeal-1064.sxw fresh suit. Even the writ petition filed by the appellant-plaintiff’s predecessor in 2003 challenging the permission granted to defendant No. 1 by Bombay Municipal Corporation for construction on the suit land was withdrawn on 17th December, 2003. 4 In view of the above facts, the learned Trial Judge dismissed the notice of motion seeking injunction against the construction or use of the building on the suit land but directed the respondents-defendants that while dealing with the property and/or transferring the same the respondents-defendants shall intimate to all purchasers/assignees that the suit filed by the present plaintiff is pending and all such transactions shall be subject to the final orders therein. 5 The learned counsel for the appellant-plaintiff sought to raise various contentions to assail the order of the learned Trial Judge and to obtain interim relief to restrain the respondents-defendants from using the suit property. 6 Having regard to the fact that no relief was granted to the predecessor of the appellant-plaintiff in the previous proceedings and that the respondent-defendant No.1 has also constructed 10-storey building as hospital with the permission of the Municipal Corporation and also having regard to the fact that the learned Trial Judge has passed an interim order which protects the interest of the appellant-plaintiff in the event of his success in the suit, we are not inclined to interfere with the impugned order of the learned Trial Judge. Appeal is therefore, dismissed. ASN 4 Appeal-1064.sxw 7 It goes without saying that the learned Trial Judge has made it clear in the order that all the observations were made on the basis of the averments in the plaint and that the same are tentative and prima facie and accordingly, we also make it clear that the observations made in this order are also prima facie and made only for the purpose of deciding this appeal. CHIEF JUSTICE S.J. KATHAWALLA, J.