1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION APPEAL (L) NO.774 OF 2009 IN NOTICE OF MOTION NO.38 OF 2003 IN SUIT NO.1534 OF 1983 The Khaiber Premises Co-operative Society ..Appellants Versus Mr.Rustom Boman Irani & Ors. ...Respondents ...... Ms.Gauri Godse i/b Puranik & Co. for Appellants. C.A.of Respondent No.1 present in-person. Mr.Pankaj Kavli i/b Mr.Deepak Lad for Respondent No.2. ...... CORAM : A.M.KHANWILKAR AND A.P.DESHPANDE, JJ. DATED : DECEMBER 19, 2009. P.C. : 1. Heard Counsel for the Appellants and Respondent No.1 in- person. Counsel for Respondent No.2 supports the argument of Appellants. The order which is impugned in this Appeal was passed on Notice of Motion No.38/2003 dated September 8, 2009. The learned Single Judge made the Notice of Motion absolute in terms 2 of prayer clauses (a) and (b), which read thus: “(a) That an Architect be appointed from the panel of architects maintained by the Office of this Honourable Court to visit the said plot of land together with the structures known as Khaiber, Garda Cottage and Garda Villa standing thereon, bearing City Survey Nos.F/1066 A, F/1067 and F/1068 situate at Plot No. 83(Part) T.P.S. IV, Bandra (West), Bombay 400 050 and the said Architect be ordered and directed to measure the actual Floor Space Index consumed by the seven storied building on stilts known as “Khaiber” as well as the ground floor structure known as Garda Cottage bearing CTS No.F/1067 and also that of the ground plus one upper floor building known as Garda Villa bearing CTS No.F/1068 situate on the said plot of land; (b) That the said Architect be further directed to make and submit his report alongwith a plan in respect of the actual Floor Space Index consumed by the said structures known as “Khaiber”, “Garda Cottage” and “Garda Villa”, situate at the plot of and bearing C.T.S. Nos.1066A, F/1067 and F/1068 Plot No.83 (Part), T.P.S.IV, Bandra (West), Bombay – 400 050, on an affidavit, within three months of his appointment, in this Hon’ble Court.” 2. The principal question that we need to address at the outset is: whether the Appeal under Clause 15 of the Letters Patent can be entertained? Counsel for the Appellants submits that upon reading the Plaint and the affidavit in support of Notice of Motion as well as written statement, the inevitable conclusion is that the order as passed by the learned Single Judge would adversely affect the valuable right of the Appellants and for that reason, the Appeal should be entertained keeping in mind the exposition of the Apex Court in the case of Shah Babulal Khimji vs. Jayaben D.Kania & Anr. reported in AIR 1981 SC 1786, in particular, in Paragraphs 3 113 and 122 thereof. The Apex Court in this case observed that there may be interlocutory orders which are not covered by Order 43 Rule 1 but which also possess the characteristics and trappings of finality, in that, the orders may adversely affect a valuable right of the party or decide an important aspect of the trial in an ancillary proceeding. It further went on to observe that before such an order can be a Judgment the adverse effect on the party concerned must be direct and immediate rather than indirect or remote. 3. Considering the nature of relief granted by the learned Single Judge, which in substance, is appointing Commissioner for the limited purpose to measure the actual Floor Space Index consumed by the seven storied building on stilts known as “Khaiber” as well as the ground floor structure known as `Garda Cottage’ as also ground plus one upper floor building known as `Garda Villa’ and incidental direction in that behalf, in our opinion, cannot be termed as an order which adversely affects the valuable right of the Appellants. The apprehension of the Appellants that the Commissioner may bring certain material on record which would affect the contention of the Appellants, in our opinion, is a matter 4 which will have to be addressed by the Trial Court at the appropriate stage. The report of the Commissioner would not be to adjudicate any contentious issue or opine upon the valuable right of the Appellants, but the Commissioner is only expected to measure the property and submit report in terms of the limited directions issued by the learned Single Judge. In this view of the matter, we conclude that Appeal as presented is not maintainable. 4. We make it clear that all grounds available to the Appellants to challenge the correctness of the Commissioner’s report or for that matter even the order impugned in this Appeal, in appropriate proceedings are left open to be decided on its own merits, in accordance with law. 5. Appeal disposed of on the above terms. A.P.DESHPANDE, J. A.M.KHANWILKAR, J.