relief of injunction =” I have perused the record and more particularly, the order passed on 31.8.2005 and on 28.9.2005. Both these orders have discussed the entire dispute between the parties at length. It is a fact that the plaintiff approached the court with pleas that he was in possession of the suit property on the date of the suit for reasons disclosed in the said notices as well as in the plaint. It is a fact that, the courts have held that, he has not been successful in showing that he is entitled for the reliefs prayed. The interim notice is accordingly, dismissed and the appeal is also dismissed. These events have taken place in the year 2005. We are in the year 2008. It is not the case of the defendant that during the period between 2005 to 2008, he has lost his possession. Thus, from the material on record, it appears that possession may be with the defendant. If it is so, plaintiff cannot dispossess the defendant from the suit property, so long as the suit is pending and orders in Notice of Motion are in force. If the defendant is dispossessed by the plff, he can approach the court in the same suit, so long as it is pending. Therefore, there is no need to pass any interim order, in his favour, at this stage. So far as, 3rd parties are concerned, if the defendant feels that he is threatened by them he has to take appropriate proceedings as per law. In the circumstances, I find that in view of two judgments, with facts on record, the defendant is not entitled for the relief of injunction in this suit at this stage. Hence the order.” The learned Single Judge of the High Court dismissed the civil revision but gave liberty to petitioners to avail appropriate remedy. In our view, the order passed by the trial Court was based on correct analysis of the factual matrix of the case and the High Court did not commit any error by declining to interfere with the same. With the above observation, the special leave petition is dismissed.

' 
ITEM NO.50 COURT NO.5 SECTION IX

S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS

Petition(s) for Special Leave to Appeal (Civil) No(s).22542/2009

(From the judgement and order dated 01/04/2008 in AFO No.250/2008 in NM
No.4425/2005 in SCS No.2194/2005 of The HIGH COURT OF BOMBAY)


DEEPAK PARSHURAM TAWADE & ANR. Petitioner(s)

VERSUS

MOHD.ATHAR NIZAMUDDIN & ORS. Respondent(s)

(With appln(s) for c/delay in filing SLP and prayer for interim relief and
office report)


Date: 16/07/2012 This Petition was called on for hearing today.


CORAM :
HON'BLE MR. JUSTICE G.S. SINGHVI
HON'BLE MR. JUSTICE SUDHANSU JYOTI MUKHOPADHAYA


For Petitioner(s) Mr. Raja Chatterji, Adv.
Mr. Shankar Divate,Adv.
Mr. H.V. Holmagi, Adv.
Ms. Neeta Jain, Adv.

For Respondent(s) Mr. Pawan Kr. Bansal, Adv.


UPON hearing counsel the Court made the following
O R D E R

Delay condoned.

This petition is directed against order dated 1.4.2008
passed by the learned Single Judge of the Bombay High Court, whereby he
refused to interfere with interim order dated 7.3.2008 passed by the Bombay
City Civil Court at Dindoshi in Notice of Motion No.4425/2005 in SC Suit
No.2194/2005 titled Mohd. Athar Nizamuddin v. Mohd. Ahmed Khan and others
but made it clear that if the defendants want to assert their rights in
respect of the suit property, they are free to avail appropriate legal
remedy.
We have heard learned counsel for the parties and perused
the record.
The petitioners claim to have purchased the suit property
vide registered deed dated 10.11.2004.
 According to them, the property was
recorded in their names and they are in possession. 
The respondents filed
suit for declaration and permanent injunction. They also applied for
interim injunction, but their prayer was rejected by the trial Court vide
order dated 31.8.2005. 
Appeal filed against that order was dismissed by the
High Court with an observation that the suit property was not in possession
of the respondents. 
Thereafter, petitioner No.1 (defendant No.14 in the
suit) filed an application for temporary injunction by asserting that he
was in possession. 
The trial Court rejected the prayer of petitioner No.1
by assigning detailed reasons. 
This is evinced from the following portion
of order dated 7.3.2008 passed by the trial Court.:
" I have perused the record and more particularly, the order passed on
31.8.2005 and on 28.9.2005. Both these orders have discussed the entire
dispute between the parties at length. It is a fact that the plaintiff
approached the court with pleas that he was in possession of the suit
property on the date of the suit for reasons disclosed in the said notices
as well as in the plaint. It is a fact that, the courts have held that, he
has not been successful in showing that he is entitled for the reliefs
prayed. The interim notice is accordingly, dismissed and the appeal is also
dismissed. These events have taken place in the year 2005. We are in the
year 2008. It is not the case of the defendant that during the period
between 2005 to 2008, he has lost his possession. Thus, from the material
on record, it appears that possession may be with the defendant. If it is
so, plaintiff cannot dispossess the defendant from the suit property, so
long as the suit is pending and orders in Notice of Motion are in force. If
the defendant is dispossessed by the plff, he can approach the court in the
same suit, so long as it is pending. Therefore, there is no need to pass
any interim order, in his favour, at this stage. So far as, 3rd parties are
concerned, if the defendant feels that he is threatened by them he has to
take appropriate proceedings as per law. In the circumstances, I find that
in view of two judgments, with facts on record, the defendant is not
entitled for the relief of injunction in this suit at this stage. Hence the
order."

The learned Single Judge of the High Court dismissed the
civil revision but gave liberty to petitioners to avail appropriate remedy.
In our view, the order passed by the trial Court was based
on correct analysis of the factual matrix of the case and the High Court
did not commit any error by declining to interfere with the same.
With the above observation, the special leave petition is
dismissed.


|(Parveen Kr.Chawla) | |(Phoolan Wati Arora) |
|Court Master | |Court Master |
| | | |