: 1 : IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO.231 OF 2009 ALONGWITH CIVIL APPLICATION NO.270 OF 2008 IN APPEAL FROM ORDER NO.231 OF 2009 Anil Wadhare .. Appellant V/s. Arvind G. Karmarkar & Ors. .. Respondents Mr. M.S. Menon for the Appellant-Applicant. Smt. Anagha Malvankar for Respondent Nos.1 to 3. CORAM : SMT. NISHITA MHATRE, J. DATED : 24 TH NOVEMBER, 2009. P.C.: 1. Heard the learned Advocates for the parties. 2. The Appeal from Order has been filed against the order dated 17th November, 2008 passed by the City Civil Court, Dindoshi, Mumbai in the Notice of Motion in S.C. Suit No.1438 of 2008. By this order, the trial Court granted interim relief in the following terms : “(a).Pending the hearing and final disposal of the Suit, the defendant No.2 be ordered and directed to modify and/or amend : 2 : the I.O.A. or letter of intent as the case may be in respect of the construction of compound wall cross and/or along the suit access through CTS No.480, 477 and 474 from Telli Gully Cross Road, at Village Gundavli, Taluka Andheri, Mumbai Suburban District by the Defendant No.1 with a further direction that the suit access should be at least 10 ft. width. (b). Pending the hearing and final disposal of the Suit, defendant No.1, his servants, agents, contractors, employees and workmen etc. be restrained by an order and injunction of this Hon’ble Court from carrying out any construction of compound wall across and/or along the suit access through CTS No.481 to the plaintiffs properties at CTS Nos.480, 477 and 474 from Telli Gully Cross Road at Village Gundavli, Taluka Andheri, Mumbai Suburban District without leaving at least 10 ft. width.” 3. The grievance of the appellant is that the trial Court ought not to have, at the interim stage, directed defendant No.2 to modify the I.O.D. or Letter of Intent in respect of the construction of the compound wall on C.T.S. Nos.480, 477 and 474 with respect to the access to the property from Telli Gully Cross Road. : 3 : 4. It appears that the appellant had not filed his written statement immediately after being served with the writ of summons. It appears that the Notice of Motion has been filed for taking on record the written statement. That Notice of Motion is yet to be decided. The learned Advocate appearing for the plaintiffs, i.e. the respondents herein, states that despite the order having been passed in favour of the plaintiffs-respondents in November, 2008, the plaintiffs-respondents have not taken any steps to have the order implemented since they are keen to proceed with the trial. 5. She further states that till the trial is complete, the plaintiffs-respondents will take no steps to have the interim order in terms of prayer (a) implemented. However, at the same time, the appellant must be directed to abide by the order in prayer (b) which has already been passed by the trial Court at the interim stage. 6. The trial Court is directed to dispose of the Notice of Motion with respect to taking on record : 4 : the written statement of the appellant-defendant within a period of four weeks from today. 7. By an order dated 24th February, 2009, this Court had appointed a Commissioner in order to ascertain whether there is an access available to the respondents herein from both Telli Gully as well as Telli Cross Gully to C.T.S. Nos.480 and 481. The Commissioner’s report is submitted to this Court and it indicates that an access is available from both the roads. However, he has submitted that if the proposed wall is constructed, the access from Telly Cross Gully would be affected in as much as the access would be reduced by 6 feet. 7. In my opinion, the Appeal from Order can be disposed of by directing the trial Court to decide the Suit expeditiously since the development of a slum area has been stalled in view of the contentions of the plaintiffs-respondents. 8. While disposing of the Suit, the trial Court will consider the Commissioner’s report which has : 5 : been submitted to this Court as well as the other evidence on record in accordance with law. 9. Accordingly, the Appeal from Order is disposed of in the following terms : (i). The trial Court is directed to consider the Notice of Motion filed by the appellant-defendant for taking on record the written statement within a period of four weeks from today. (ii).The Suit will be disposed of within a period of nine months from today. (iii).The statement made by the learned Advocate for the respondents that they will not insist on prayer (a) of the Notice of Motion being implemented i.e. the I.O.D. being modified at this : 6 : stage, is accepted. However, the status-quo as of today shall be maintained by the parties till the Suit is decided i.e. prayer (b) of the Notice of Motion will continue. 10. The Appeal from Order is disposed of. 11. In view of the above, Civil Application No.270 of 2008 pending in the Appeal from Order does not survive and the same is dismissed. .......