: 1 : SD IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPLICATION NO.5444 OF 2007 CIVIL APPLICATION NO.5444 OF 2007 CIVIL APPLICATION NO.5444 OF 2007 IN IN IN FIRST APPEAL NO.2501 OF 2007 FIRST APPEAL NO.2501 OF 2007 FIRST APPEAL NO.2501 OF 2007 Linus Vivek Rodrigues & Anr. ...Applicants V/s. Akhtar Hasan Rizvi ...Respondent Mr.Cline D’Souza, Advocate, for the Applicants. Mr.Nihar Ghag with Mr.M.J. Shukla and Mr.R.R. Ketkar, Advocates, for the Respondent. CORAM : ABHAY S. OKA, J. CORAM : ABHAY S. OKA, J. CORAM : ABHAY S. OKA, J. DATE : 25TH FEBRUARY, 2008. DATE : 25TH FEBRUARY, 2008. DATE : 25TH FEBRUARY, 2008. P.C.: P.C.: P.C.: 1. Rule. Advocate on record for the respondent waives service. Taken up for hearing. As issue of peculiar jurisdiction of the Trial Court is raised, the Appeal has been admitted for final hearing. 2. Suit for possession of the suit premises on the ground of title was filed by the respondent-plaintiff. The defence of the appellants was of tenancy. The appellants have not disputed the title of the respondent. The Trial Court has noted that the 1st appellant has instituted a suit against the respondent in the Court of Small Causes for claiming declaration of tenancy. There is no dispute : 2 : that the suit has been dismissed for default on 10th August, 2001 and till today the said suit has not been restored. 3. The appellants have not disputed the title of the respondent. As the suit filed by the appellants for declaration has been dismissed in default more than 7 years back, as of today the applicants-appellants have no right to continue in possession. Therefore, prayer for stay cannot be granted. However, before obtaining possession of the suit premises, the respondent will file an undertaking in this Court that he will not create third party interests in respect of the suit premises and he will not part with possession of the suit premises till the final disposal of the Appeal. The decree will not be executed unless such undertaking is filed by the respondent in this Court. 4. Hence subject to what is observed above, the Application is rejected. 5. At this stage the learned Counsel appearing for the applicants seeks continuation of ad-interim order on the ground that the applicants want to apply for restoration of the suit. : 3 : 6. In view of this request, the ad-interim order passed earlier will continue to operate till 31st March, 2008. [ABHAY S. OKA, J.] [ABHAY S. OKA, J.] [ABHAY S. OKA, J.]