1 ao146.10.sxw IN THE HIGH COURT OF JUDICATURE OF BOMBAY CIVIL APPELLATE JURISDICTION. Appeal from Order No. 146 of 2010 Mr. Richard Thomas Gonsalves & anr. ....Appellants v/s. Mr. Sunil Kyal ....Respondent Ms. Pratibha Shedge i/b. R.A. Thorat for the appellants. CORAM: R.M. BORDE, J. 8th December, 2011 PC: Heard. None appears for respondents though served. 2. The appellant is taking exception to the order passed by the trial Court rejecting Notice of Motion No. 470/2009 in S.C. Suit No. 500/2007 by an order dated 9th December, 2009. The learned trial Judge by an order dated 20th August, 2008 was pleased to reject ad-interim relief and direct the plaintiff to serve writ of summons to the defendants. The matter was adjourned to 13th October, 2008. It appears on 13th October, 2008 the plaintiff was not able to serve writ of summons on the defendants. As such the trial Court dismissed the suit for want of prosecution. An application was tendered i.e. Notice of Motion No. 470/2009 for setting aside the order passed by Court on 13th October, 2008. However, said application has been turned down. Hence, present Appeal from Order. 3. The main reason recorded by the trial Court for rejection of the application is that on refusal to grant ad-interim relief, the defendants have 2 ao146.10.sxw completed the construction of the building and the suit is rendered infructuous. The Court has observed that the plaintiff has not prayed for possession and only declaratory relief is claimed. Since the defendants have raised construction, the suit itself is rendered infructuous. Apart from other reliefs the plaintiff has also prayed for a declaration that the defendants have no right, title or interest in the suit premises admeasuring about 262 sq. meters. The relief claimed in the suit does not render infructuous on account of refusal to grant ad-interim relief by the trial Court. The view taken by the trial Court appears to be erroneous and considering the nature of litigation which relates to entitlement to immovable property, the trial Court ought to have extended an opportunity to the plaintiff to serve the respondents and to take further appropriate steps in the matter. The order passed by the trial Court is erroneous and is liable to be set aside. 4. The Appeal from Order is, therefore, allowed. The order passed by the trial Court on 9th December, 2009 dismissing Notice of Motion No. 470/2009 is set aside and SC Suit No. 500/2007 shall be deemed to have been restored to its original number. The plaintiff shall take appropriate steps for serving writ of summons to the defendants within eight weeks from today. 5. The Appeal from Order is allowed accordingly. In the facts and circumstances of this case there shall be no order as to costs. (R.M.BORDE, J)