gst 1 ao1301.10.sxw IN THE HIGH COURT OF JUDICATURE OF BOMBAY CIVIL APPELLATE JURISDICTION. APPEAL FROM ORDER NO. 1301 OF 2010 Rajiv Datta .... .... ..... .... ..Appellant. V/s New Akash Ganga Coop. Hsg. Soc. Ltd. & Anr. ... ..Respondents. Mr.D.H.Mehta i/by Mr.Yatin R. Shah, Adv. For the appellant. Mr.Abhishek Pungalia, Adv. For R.No.1 Ms.K.K.Soraan, Adv. For BMC. CORAM: B.R. GAVAI, J. 2nd February., 2011 PC: Admit. It is made clear that pendency of the appeal shall not come in the way of disposal of the suit and the learned trial Court shall dispose of the suit as expeditiously as possible. gst 2 ao1301.10.sxw IN THE HIGH COURT OF JUDICATURE OF BOMBAY CIVIL APPELLATE JURISDICTION. CIVIL APPLICATION NO. 1603 OF 2010 IN APPEAL FROM ORDER NO. 1301 OF 2010 Rajiv Datta .... .... ..... .... ..Appellant. V/s New Akash Ganga Coop. Hsg. Soc. Ltd. & Anr. ... ..Respondents. Mr.D.H.Mehta i/by Mr.Yatin R. Shah, Adv. For the appellant. Mr.Abhishek Pungalia, Adv. For R.No.1 Ms.K.K.Soraan, Adv. For BMC. CORAM: B.R. GAVAI, J. 2nd February., 2011 PC: Heard learned counsel for the parties. The injunction which has been granted by the trial court is in effect in the nature of mandatory injunction thereby restraining the appellant from running his business in the stilt parking area of premises numbered as 12B. It is the contention of the appellant that since the period building was constructed the said premises have been utilized as commercial premises either for boutique or massage parlour. He submits that he has under a valid document purchased it from one Amrishkumar to whom the premises were transferred from one Mrs.Sheila Sakhrani. It is therefore submitted that the appellant has purchased the premises for valid consideration of Rs.57 lacs. It is further submitted that the principles of balance of convenience, irreparable injury could weigh in favour of the appellant. 2. Learned counsel for the respondent No.1 on the contrary submits that the appellant do not have any legal right to continue in the occupation. He submits gst 3 ao1301.10.sxw that the builder who had constructed the building in which the members of the society are residing had indulged in various illegal activities and by overing the stilt parking area unauthorizedly sold it to some persons. He sub ts with great difficulties the society building in question was conveye in favour of the society in the year 1991. He relies upon a judgment of the pex Court in the case of Nahalchand Laloochand Pvt. Ltd. Vs. Pan chal Coop. Hsg. Soc. Ltd. (Civil Appeal No.2544 of 2010 decided on 31.8.20 0) in respect of submission that the builder has no right to sale the parking area. 3. At the stage of considering application for temporary injunction apart from prima facie case the Courts are also required to take into consideration the test of balance convenience, irreparable injury. 4. Even according to the plaintiff the builder had illegally and unauthorizedly covered the parking space prior to building being conveyed in favour of the society in the year 1991. It thus appears to be undisputed position that the premises in question are being utilized for commercial purpose atleast prior to 1991. If an order of injunction has an effect of upsetting the position which continues for a period of more than two decades, in my view it would be allowing the suit finally at the stage of interim injunction. The question as to whether the title of the appellant is valid or not as to whether their occupation is legal or not, could be gone into only at the stage of hearing of the suit after evidence of the parties is recorded in the matter. 5. In that view of the matter I am inclined to allow the civil application. Civil application allowed in terms of prayer clause (b).