1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO. 485 OF 2009 WITH CIVIL APPLICATION NO. 592 OF 2009 Mrs. Ranjan Mitchell & Anr. ....Appellants Versus The Deputy Collector, Bombay & Ors. ....Respondents Mr. Navin Parikh i/b. Mr. R. M. Vanoo, Advocate for the Appellants. Mrs. M. M. Deshumukh, AGP for Respondents. CORAM : R. V. MORE, J. DATED : 7th JULY, 2009. P.C. Heard, Mr. Navin Parikh, learned Counsel for the Appellants and Mrs. Deshmukh, learned AGP for the Respondents. 2. The Appellants are the original plaintiffs. They filed S.C.Suit No. 3 of 1996 against the Respondents for declaration that they are the absolute owners of the water tank bearing survey no.172 (1), Malad Old and C.T.S.No. 825, Malad, Mumbai. The consequential relief of injunction and setting aside orders dated 29th June, 1968, 24th April, 1984 and 1st January, 1988 i.e. Exhibits F, I and K annexed to the suit was also claimed. 3. The Appellants also simultaneously filed Writ Petition No.398 of 1989 in this Court for similar reliefs. The Writ Petition was rejected on 27th March, 1989. Thereafter, the Appellants filed Appeal No. 942 of 1989 which was initially admitted and disposed of by the order of the Division Bench dated 26th March, 1996. It is worth to mention that during the pendency of the 2 Writ Petition and Appeal, the order of status-quo was in force and even after disposal of the Appeal, this order of status-quo was extended for the period of eight weeks, in order to enable the Appellants to prosecute the said suit. The Appellants thereafter, numbered the suit which was already filed in the year-1989. The Appellants also filed notice of motion no.2634 of 1996. In this notice of motion, the learned Trial Judge granted order of status-quo on 17th May, 1996. 4. The Appellants’ father died on 18th February, 1999 and their mother died on 22nd November, 2002. Thereafter, nobody appeared in the suit and the suit was accordingly dismissed for default on 1st July, 2003. It is a common ground that the said suit was subsequently restored by setting aside abetment. The Appellants thereafter, filed present notice of motion being notice of motion no.570 of 2008. The learned Trial Judge on 16th April, 2008 granted injunction restraining the Respondents from making any further construction on the suit property, in view of the earlier order of status-quo granted in the suit on 17th May, 1996. The said notice of motion was heard finally and same was dismissed and therefore, the Appellants are before this Court. 5. The Appellants’ notice of motion is dismissed firstly, on the ground that the Appellants failed in writ petition and appeal and secondly the Appellants have not challenged the orders dated 29th June, 1968 and 24th April, 1984 before appropriate authority. In my view, both the reasons are misconceived. It is true that the Appellants filed writ petition and appeal challenging the abovesaid orders. However, facts remain that the Appellants were not granted any relief in those proceedings on the ground of disputed question of facts and the predecessor in title of the Appellants already filed suit in the City Civil Court. So far as second ground is concerned, the prayer clause (a) of the suit is about declaration of Appellants’ ownership to the suit property. Under prayer clause (b) consequential relief of mandatory injunction is claimed. Under prayer clause (c) declaration is sought to quash and set aside the orders dated 29th June, 1968 and 24th April, 1984. In the above facts and circumstances, I am of the view that the Appellants’ notice of motion could not have been rejected on these grounds. 3 6. The facts stated above do show that the order of status-quo regarding construction on the suit property was passed initially in the year 1989. It was in force till 1996, i.e. during pendency of appeal and thereafter, the said order was again continued in the suit and the same was in force till the suit was dismissed for default. The suit was restored on file and again temporary injunction was issued by the Trial Court on 16th April, 2008 and this injunction was in force till the impugned order. The suit is of 1996 and therefore, the statement was made that the same is ready for final hearing. In the above facts, I am of the opinion that the interest of justice will be subserved by directing the Trial Court to expedite hearing of the suit and meanwhile, directing the parties to maintain status-quo regarding the suit property. I therefore, dispose of the Appeal from Order, by passing the following order: 1. The impugned order is quashed and set aside. Both the parties are directed to maintain status-quo regarding the suit property, till disposal of the suit. The notice of motion no.570 of 2008 will stand disposed of. 2. The Trial Court is directed to hear and dispose of the Suit No.3 of 1996 as expeditiously as possible and in any case within a period of one year from the date of receipt of this Order. 7. In view of the disposal of the Appeal from Order, the Civil Application No.592 of 2009 will not survive and therefore, the same is disposed of. Sd/- (R. V. MORE, J.)