KPP -1- CA No. 1750 of 2011 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPLICATION NO. 1750 OF 2011 IN FIRST APPEAL NO. 2695 OF 2007 M/s. Sun Enterprises & Ors. ... Applicants vs. Madhukar Hari Mote and others ..Respondents Mr. P.K. Dhakephalkar, Senior Advocate, instructed by M/s. Chitnis Vaithy & Co., for the applicants. Mr. A.Y. Sakhare, Senior Advocate, instructed by Ms. Lalita Panchakshari, for respondent Nos. 1 to 6. Mr. J.S. Deo for respondent Nos. 13 to 16. CORAM: P.B. MAJMUDAR & R.V. MORE, JJ. DATE: JULY 15, 2011. P.C. This Court, while disposing of Civil Application No. 4872 of 2008 in First Appeal No. 2695 of 2007, passed the following order on 14th September, 2009. KPP -2- CA No. 1750 of 2011 “By way of this Civil Application, the Applicants have prayed that during the pendency of this Appeal, the Respondents may be restrained from changing the status-quo of the suit property and the new purchasers may be allowed to be brought on the record of the First Appeal. The Purchasers have already been joined as Respondent Nos.23 to 29 in the Civil Application. The said Respondent Nos.23 to 29 are also allowed to be joined in the First Appeal itself. The Civil Application to the extent of the said prayer is accordingly granted. The cause title of the First Appeal is permitted to be amended accordingly. 2. Mr. Dhakephalkar, sr. learned Counsel, appearing for the newly added Respondent Nos. 23 to 29 submitted that the said Respondents have purchased the property after the decree of the Trial Court and at that time no injunction was in force, as according to him, after the decree of the Trial Court for a period of one year, injunction was in force. He submitted that the said Respondents are the bonafide purchasers and they purchased the property for the purpose of its development for which they are required to incur huge expenditure. The learned Counsel for the Purchasers submitted that as per the findings of the Trial Court, the Applicants have got no right in the property which the Purchasers have purchased. 3. We have heard the learned Advocates for the parties. Since the Purchasers have purchased the property after the decree of the Trial Court and before the injunction was granted by this Court, in our view, it would be just and proper to allow the said Respondents to develop the said property, as in case the Appeal is dismissed they may suffer great financial loss. In order to balance the equities, we permit the said purchasers to develop the property subject to the result of the First Appeal and after completing the construction before inducting anybody in the aforesaid property after its development, no third party interest will be created without obtaining the leave from this Court. No interest and equities will be claimed only on the ground that the property is allowed to be developed, in case the KPP -3- CA No. 1750 of 2011 Appeal of the Applicants is allowed by this Court. The Civil Application is disposed of, in the aforesaid lines with no order as to cost”. 2. The present civil application is taken out by the applicants on the ground that since the applicants want to create third party interest, it is prayed that this Court may grant leave to the applicants to part with possession of the property as, according to the applicants, they have spent considerable amount and if the property is required to be kept in idle condition, the applicants will suffer severe financial loss. During the course of hearing, Mr. Dhakephalkar, senior counsel appearing for the applicants, pointed out that even if the appeal is allowed, the appellants would be entitled to have 40 per cent share in the disputed property at Kalyan. Mr. Sakhare, learned counsel, on the other hand, submitted that it is true that the plaintiffs and the other co-parceners from his branch may have total 40 per cent of share in the disputed property and, therefore, the applicants should not be allowed to create any third party interest at least qua 40 per cent, which is the claim asserted by the respondents. 3. We have heard the learned counsel for the parties at length. Since it is not in dispute that even if the original appellants succeed in the KPP -4- CA No. 1750 of 2011 appeal, they can succeed upto 40 per cent of their share in the disputed property. Since by virtue of the order dated 14th September,2009, the development is under process, it would be just and proper to permit the applicants to part with possession after such development in favour of third parties to the extent of 60 per cent of the total constructed property at Kalyan. Rest of the 40 per cent should be kept intact and not to be parted with in favour of any third party or create any third party interest. Mr. Dhakephalkar further submits that the applicants orally undertake before this Court, through him, that even if the constructed portion is required to be removed so far as 40 per cent of the area, the same will also be removed at their cost, without claiming any reimbursement or expenditure from the original appellants. The said statement is recorded. The applicants to act accordingly. 4. In view of the above, the applicants are permitted to create third party interest only qua 60 per cent of the total property located at Kalyan and 40 per cent of the constructed property to be kept intact and no possession to be parted with and/or create any third party interest therein. Mr. Dhakephalkar further submits that the applicants will not file fresh application for creating any third party interest qua 40 per cent of KPP -5- CA No. 1750 of 2011 the property. The said statement is recorded. The Civil Application is accordingly disposed of in the aforesaid terms. P. B. MAJMUDAR, J. R.V. MORE, J.