1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY O. O. C. J. NOTICE OF MOTION NO.68 OF 2008 IN SUIT NO.107 OF 1995 Navin Kamlashankar Joshi. ...Plaintiff. Vs. Vijay M. Joshi & Ors. ...Defendants. .... Mr. Pravin Diwan i/b. M/s. Kanga & Co. for the Plaintiff. Mr. Chetan Kapadia i/b. P.K. Shroff & Co. for Defendant Nos.3 and 4. ..... CORAM :DR.D.Y.CHANDRACHUD, J. February 4, 2008. P.C.: The suit has been instituted for a declaration that an agreement by which the First and Fourth Defendants acquired right title and interest in respect of the suit premises on 29th April 1994 is not binding on the Plaintiff. The Plaintiff claims a 1/4th share in respect of the premises of the flat and consequential reliefs have been sought. 2 On 23rd September 1998, a Learned Single Judge of this Court, while granting interlocutory relief on a Notice of Motion, directed that the Third and Fourth Defendants who are the flat purchasers shall not create any third party interests, encumber the property or change the nature of the property or make any substantial structural alterations. This order was confirmed by the Division Bench on 9th December 1998 with the modification that if the Third and Fourth Defendants wish to reside in the property and for the aforesaid purpose desire to make any substantial structural alterations or furnish the property, the order of the Learned Single Judge would not come in the way. The Third and Fourth Defendants filed a Special Leave Petition which was disposed of by the Supreme Court on 16th August 1999. Before the Supreme Court, the Petitioners who are the Third and Fourth Defendants urged that they may be permitted to move this Court for appropriate modification including permission to give the suit premises on leave and licence. The Supreme Court noted that 3 as a matter of fact, the Division Bench had furnished the liberty to apply for modification of the order if the circumstances so warranted. Consequently, on 29th July 2002, a further order was passed by a Learned Single Judge in a Notice of Motion taken out by the Third and Fourth Defendants who wished to give the premises on leave and licence. The Learned Single Judge has observed that the object of the interim orders which held the field was to ensure that the premises should be protected against alienation or creation of any third party interests. In the circumstances, the Motion was made absolute subject to certain conditions, namely, that the Third and Fourth Defendants as well as their licensee would file an undertaking in this Court that the premises were being given on leave and licence for a stipulated period and that at the end of the period, the licensee would hand over the possession to the licensor. The Court directed that the parties would be at liberty to move the Court if they wanted to extend the period, but that unless such an extension was granted, the licensee would not be entitled to continue to remain in the 4 premises. Subsequent to the aforesaid order, further orders have been passed on 10th September 2003, 17th September 2004, 15th September 2005 and 16th October 2006 granting permission to the Third and Fourth Defendants to grant the premises on licence for a stipulated term of 12 months on each occasion. Two of the aforesaid orders have been passed specifically by consent. In my view, having regard to the orders which have been passed since 29th July 2002, there is no reason why permission should not be granted to the Third and Fourth Defendants to give the premises on leave and licence for a period of 12 months commencing from the expiry of the term of the previous period, on the conditions envisaged in the order dated 29th July 2002. As already observed by this Court, the object of the interim order is to ensure that the property is safeguarded against the creation of third party rights. The conditions which have been set out in the order dated 29th July 2002 will sufficiently safeguard that purpose. The Notice of Motion is made absolute subject to the same terms and conditions as 5 in the order dated 29th July 2002. However, it is clarified that in the event that upon conclusion of the trial, any decree for mesne profits is passed, the quantification of the mesne profits shall proceed in accordance with law and the licence fee which has been prescribed in the agreement of licence by the Third and Fourth Defendants shall not be conclusive of the true value of the compensation that is realisable. Learned Counsel appearing on behalf of the Third and Fourth Defendants states that a copy of the undertaking that shall be filed shall be furnished to the Plaintiff. ......