1 caa1293 ssp IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION CIVIL APPLICATION NO.1293 OF 2010 IN APPEAL FROM ORDER NO.1063 OF 2010 Ms Lalita Khewoor ...Applicant vs. Lokhandwala Infrastructure Pvt. ...Respondent Mr.B.B.Deshmukh for the applicant Mr.Chirag Balsara i/b Mr.Anil Rao for the respondent CORAM : A.S.OKA,J. DATE : MARCH 23,2011 P.C.: 1 Heard learned counsel for the parties. The operative part of the impugned order reads thus : 1 The defendant, her servants and or any person causing through or under the defendant are prevented by an order of injunction to attempt for an encroachment/trespass on the property of the plaintiff i.e in the open space more particularly shown and marked on the plan annexed with plaint and carrying on business of motor mechanic and bringing any vehicles and carrying out repairs therefrom or carrying any other business from the property of the plaintiff in any manner. 2 Cost into cause of the suit. 2 In paragraph 17 of the plaint, the respondent- plaintiff has stated thus : 2 caa1293 17 The suit property is situated at Mumbai. The Defendant is unauthorizedly occupying the premises and open space in the property of the plaintiffs. Therefore, the whole cause of action has arisen within the jurisdiction of this Honouable Court and this Honourable Court has therefore, jurisdiction to try and entertain the present suit. (underline supplied) 3 There are other averments in the plaint indicating that the applicant-defendant is in possession of the open space and according to the case of the respondent- plaintiff, he is unauthorisedly occupying the open space. There is no prayer in the suit for passing a decree for possession. The suit is simplicitor for declaration and injunction. The result of the impugned order will be that the applicant will be prevented from entering the property of which he appears to be in possession as set out in the plaint. In the circumstances, considering the frame of the suit, operation of the impugned order will have to be stayed. Accordingly, application is allowed in terms of prayer clause (a). 4 This order will not prevent the respondent either from filing a suit for possession or from carrying out amendment to the plaint for seeking substantive relief. It will be open for the respondent to apply for variation of this order after appropriate proceedings are taken out by the respondent. JUDGE