gopi 1 app-lodg.732-11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY. ORDINARY ORIGINAL CIVIL JURISDICTION APPEAL LODGING NO.732 OF 2011 IN NOTICE OF MOTION NO.3036 OF 2011 IN SUIT NO.4802 OF 1994 Sheryl Samthaney & Anr. ..Appellants V/s. Aslam Y. Jafrani & Ors. ....Respondents. Mrs.Rajni Iyer, Senior Advocate with Mr. Denzil D’Mello for the appellants. Mr. Sharan Jagtiani with Mr. Yogendar Kanchan i/b. Vijay B. Dhigreja for respondent Nos. 1 and 2. CORAM: MOHIT S. SHAH, C.J., & MRS. ROSHAN DALVI, J. DATED : 14 November 2011. P.C. Heard Ms. Rajni Iyer, learned Senior Advocate for the appellants and Mr. Sharan Jagtiani, learned Senior Advocate for the respondent Nos. 1 and 2. 2. Appeal is admitted. 3. Mr. Yogendar Kanchan, learned Advocate waives service for respondent Nos. 1 and 2 for final hearing. With consent of the learned counsel for the parties, the appeal is taken up for final hearing. gopi 2 app-lodg.732-11 4. Suit No.4802 of 1994 is filed by respondent nos.1 and 2 herein under Section 6 of the Specific Relief Act, 1963 for restoration of possession of the suit flat being Flat No.102, 1st Floor, Felen Haven, St. Cyril Road, Bandra, Mumbai-400 050. The appellants, defendant nos.2 and 3 were served with the summons of the suit. However, during the pendency of the suit the advocate for the appellants (defendant nos. 2 and 3) migrated to another country and the suit was decreed ex-parte against the appellants on 22 September 2009. The appellants filed Notice of Motion No.3036 of 2011 for setting aside the ex-parte order dated 22 September 2009 and for following reliefs:- (a) to set aside the ex-parte order dated 22 September 2009; (b) to restore the suit to file and to appoint a Commissioner for the purpose of recording evidence of the parties to the suit; (c) to direct the recall of the plaintiffs witnesses who have not been cross examined by advocate for defendant nos.2 and 3 for the purpose of their cross examination; (d) to restore the status quo ante by handing back possession of the suit flat to defendant nos. 2 and 3; (e) for appointment of Court Receiver; (f) for injunction to restrain the plaintiffs from creating third party rights in respect of the suit flat. 5. The learned trial Judge by the impugned order dated 18 October 2011 declined to grant any ad-interim reliefs. 6. Ms. Rajni Iyer, the learned counsel for the appellants (defendant nos. 2 and 3) and Mr. Jagtiani, the learned counsel for the gopi 3 app-lodg.732-11 respondent nos. 1 and 2 (original plaintiffs) state that their respective clients agree that the appeal be disposed of in terms of the following terms:- (i) The ex-parte decree dated 22 September 2009 be set aside and the suit be restored to file. (ii) Mr. Ajai Fernandes be appointed as Commissioner for the purpose of recording evidence of the parties to the suit. The fees of the Commissioner be paid by both the parties in equal proportion. (iii) The plaintiffs’ witnesses who were not cross examined by the advocate for defendant nos.2 and 3, be directed to be recalled. (iv) The plaintiffs be restrained from alienating, selling, dealing with, disposing of, transferring, encumbering or parting with possession and/or creating any third party rights in respect of the suit flat. (v) Without prejudice to the rights and contentions of the parties the Plaintiffs be permitted to retain their possession of the suit flat obtained by them in execution of the ex-parte decree, with liberty to give the same on license to any third party subject to the result of the suit and with an undertaking of the third party to hand over possession of the suit flat to the successful party that is to say in case the suit is dismissed then to defendant nos. 2 and 3 and in case the suit is decreed, it will be open to the plaintiffs to continue the license. (vi) During the pendency of the suit, after deduction of the outgoings of the society 50% of the license fees shall be deposited in this Court and that the plaintiffs will be at liberty to take the balance license fees till the disposal of the suit with an undertaking to deposit the same in the Court in case the suit is gopi 4 app-lodg.732-11 dismissed. 7. Mr. Iyer states that both the appellants i.e. defendant nos. 2 and 3 are present in the Court and that they also agree to the aforesaid terms of settlement. 8. Mr. Jagtiani, the learned counsel for the respondent nos.1 and 2 i.e. original plaintiffs states that respondent no.1 is present before the Court and that respondent No.2 is the wife of respondent no.1. Respondent No.1, plaintiff No.1 is present before the Court and he admits the consent terms as recorded above and states that his wife is agreeable to the consent terms. 9. In view of the above consent terms, we dispose of the appeal in the following terms :- (a) The ex-parte decree dated 22 September 2009 is set aside and the suit No.4802 of 1994 is restored to file. (b) Mr. Ajai Fernandes is appointed as Commissioner for the purpose of recording evidence of the parties to the suit. The fees of the Commissioner to be paid by both the parties in equal proportion. (c) The plaintiffs’ witnesses who were not cross examined by the advocate for defendant nos.2 and 3, be recalled. (d) The plaintiffs are restrained from alienating, selling, disposing of, transferring, encumbering or parting with possession and/or gopi 5 app-lodg.732-11 creating any third party rights in respect of the suit flat. (e) Without prejudice to the rights and contentions of the parties the plaintiffs are permitted to retain their possession of the suit flat obtained by them in execution of the ex-parte decree, with liberty to give the same on license to any third party subject to the result of the suit till the disposal of the suit and with an undertaking of the third party to hand over possession of the suit flat to the successful party that is to say in case the suit is dismissed then to defendant nos. 2 and 3 and in case the suit is decreed, it will be open to the plaintiffs to continue the license. (f) During the pendency of the suit, after deduction of the outgoings of the society 50% of the license fees shall be deposited in this Court and that the plaintiffs will be at liberty to take the balance license fees with an undertaking to deposit the same with the Court in case the suit is dismissed. (g) The undertakings of the parties given to Court as recorded above are accepted. (CHIEF JUSTICE) (MRS. ROSHAN DALVI, J.)