1 14.cas-1007-09 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION jmi CIVIL APPLICATION NO. 1007 OF 2009 IN SECOND APPEAL NO. 286 OF 2009. Quraisha Mohammad Mushtafa & Ors. ..Applicants. vs. Jainab Mohammad Usman & Ors. ..Respondents. .... Mr. N.R. Bubna, for Applicants. Mr. Anilkumar Patil, for Respondent Nos. 1to 5 & 7. .... CORAM : G.S. GODBOLE, J. DATE : 26TH AUGUST 2011. P.C. : Heard Mr. Bubna for the Applicant and Mr. Anilkumar Patil for Respondent Nos. 1 to 5 and 7. This Civil Application seeks the following substantive relief :- “(a) Pending the hearing and final disposal of present second appeal, the Respondents be directed to deposit the rent received from suit property in the court, not to make any alteration in the suit property and further not to create any third party interest of any nature whatsoever in respect of suit property i.e. western 2/3rd share in City Survey No. 392/A, Mangalwar Ward, Malegaon having area 150.5 sq.meters and construction erected thereupon.” 2. The Applicants are the original Plaintiffs in Regular Civil Suit No. 162 of 2001 filed by them in respect of the western 2/3rd portion of property bearing City Survey No. 392/A, Mangalwar Ward, Malegaon, for a declaration of their title by inheritence, declaration that the Gift Deed in favour of the Defendants is null and void, for possession, for recovery of loss of income (mesne profit) and for injunction restraining the Defendant Nos. 1 to 7 from recovering rent 2 14.cas-1007-09 from Defendant Nos. 8 to 10 with a direction to deposit the rent in Court and for a permanent injunction restraining the Defendants from alienating the Suit property. 3. Though the Learned C.J.J.D. Malegaon has recorded findings on Issues No. 1 to 4 in favour of the Plaintiffs, on account of the findings on Issues No. 5 to 10, the Suit has been dismissed by holding that bar of res-judicata and limitation applies. Regular Civil Appeal No. 92 of 2007 filed by the Applicants has been dismissed by the learned District Judge-3, Malegaon and cross objections filed by the Respondent Nos. 1 to 7 are also dismissed by upholding of the findings of the Trial Court. Aggrieved by these Judgments and Decrees, the Appellants have filed the Second Appeal which is admitted on 22nd July 2009. In the backdrop of these facts, the prayer in the Civil Application needs to be considered. 4. Mr. Bubna submits that since two Courts have concurrently held that the Defendant Nos. 1 to 7 are wrongfully in possession of the Suit property and do not have any semblance of title, such a person in wrongful possession must be put to terms. He further submits that, in any case, the rent being recovered by the said Defendants from Defendant Nos. 8 to 10 must be directed to be deposited in Court and invested. Mr. Bubna relied on an interim order passed in Civil Application No. 1948 of 2006 in Writ Petition No. 3082 of 2001 by a Learned Single Judge [Coram : S.A. Bobde, J.] on 7th September 2007 as confirmed by the Division Bench while dismissing L.P.A. No. 229 of 2007 by order dated 7th March 2011. Mr. Bubna submits that the facts of that case are identical and hence, similar order needs to be passed. 3 14.cas-1007-09 5. Mr. Anilkumar Patil opposes the Civil Application and points out that when the substantive relief for deposit was prayed for in the Suit, after the dismissal of the Suit and the Appeal, granting such relief as an interim relief, would must amount to passing a Decree at the interlocutory stage. He also opposes grant of temporary injunction. 6. It is no doubt true that findings on Issues No. 1 to 4 have been recorded in favour of the present Appellants. The fact however remains that the Suit has been dismissed and the Appeal has also been dismissed, may be on the ground of res-judicata and limitation. However, the Second Appeal is pending. The Respondent Nos. 1 to 7 had filed cross objections in the District Court and they may support the findings of the Courts below for dismissal of the Second Appeal. Hence, passing an interim order directing the deposit of rent would amount to passing a Decree at interlocutory stage in terms of prayer clause (e) of the Plaint, when the Suit has been dismissed. Such a course would be impermissible. However, the Respondent Nos. 1 to 7 can be directed to maintain accounts of all the rents recovered by them and send the copy of accounts to the Appellants after every six months. Apart from this, in respect of the first part of the prayer for directing the Respondents to pay the rent is concerned, if the Appellants succeed in the Second Appeal, they can certainly request for considering their prayer for mesne profits, which is in the nature of monetary claim and hence, there is no question of any irreparable loss at this stage. 7. Reliance placed on the interim order passed in Civil Application No. 1948 of 2006 in Writ Petition NO. 3082 of 2001 is, in my view, not well placed. There the Suit was under Rent Act and in 4 14.cas-1007-09 the facts of that case, the Learned Single Judge in proceedings under the constitution of India had passed an interim order. 8. In so far as the prayer for injunction is concerned, in view of the findings, recorded by the Courts below, it is necessary to grant an injunction with view to avoid the multiplicity of judicial proceedings. 9. Hence, this Civil Application is disposed of in terms of the following order : (i) Prayer of the Applicant for directing the Respondent Nos. 1 to 7 to deposit the rent in the Court is rejected. (ii) The Respondent Nos. 1 to 7 are directed to disclose on Affidavit as to who are the tenants in the Suit premises until four weeks from today. The Respondent Nos. 1 to 7 are also directed to maintain an account of the rents recovered by them from the tenants and copies of such account shall be forwarded to the Applicants after every six months. (iii) The Respondent Nos. 1 to 7 are restrained by an order of injunction from parting with possession of or encumbering or alienating or creating any third party rights or interests of whatsoever nature or entering into any oral or written agreement in respect of the Suit property. If any surrender of tenancy is to be accepted by the Respondent Nos. 1 to 7 or any tenancy is to be transferred, or any new tenancy is to be created; the same shall not be done without the leave of this Court. (iv) No order as to costs. [ G.S. GODBOLE, J. ]