BRAJESH GANPATLAL BHAVSARversusRAJ PARASHAR CO OPERATIVE HOUSING SOCIETY LITD,

                                                                       1 AO 683-25.DOC



            IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                   CIVIL APPELLATE JURISDICTION
                 APPEAL FROM ORDER NO. 683 OF 2025
                               WITH
               INTERIM APPLICATION NO. 38454 OF 2025

Brajesh Ganpatlal Bhavsar & Ors.                 …Appellants/Original Plaintiffs
       Versus
Raj Parashar Co-Operative Housing Society Ltd.    …Respondent

                                   _______
Mr. Pradeep Thorat i/b Mr. Sanket Mungale, Advocates for Appellants.
Adv. Jay Bhatia, Advocate for Respondent society member. (one faction)
Adv. Viraj Parikh a/w Mr. Chirag Sarawagi a/w Ms. Tanya Sheth i/b Mr. Tushar
Goradia, Advocates for Respondent society.
                                    _______

                            CORAM:             AARTI SATHE, J.

                            DATE:              24 AUGUST 2026

P.C.

1.         This Appeal from Order under Order XLIII Rule 1 of the Code of Civil

Procedure, 1908 (‘CPC’) which takes exception to the order dated 09 th December

2025 (hereinafter referred to as the “impugned order”) passed by the learned

Bombay City Civil Court at Dindoshi, Mumbai (hereinafter referred to as the

“Trial Court”) in draft Notice of Motion 2025 taken out by the Appellants

(original plaintiffs) in S.C. Suit No. 2859 of 2025. By way of the aforesaid

impugned order, the matter was adjourned without giving or rejecting the ad-

interim relief as prayed for by the Appellants. This Court in the case of

Rajendraprasad R. Singh versus Municipal Corporation of Gr. Bombay 1 has held

that an order granting or refusing an ad-interim relief also is an order which is

1. 2003 SCC OnLine Bom 89


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appealable under Order XLIII Rule (1). The relevant paragraphs of the aforesaid

decision are reproduced below: -

         11. It was suggested that if an appeal against an order declining to grant ex parte ad
         interim injunction directing the issuance of a notice under Rule 3 of Order 39 is
         held to be appealable, the appellate Courts would be flooded with appeals and every
         plaintiff who is unsuccessful in getting an ex parte ad interim injunction would take
         a second chance by filing an appeal. It is the job and function of the Court to decide
         every lis and the appellate Court cannot claim immunity from the said function on
         the spacious ground that it would be flooded with work. It is one thing to say that an
         appeal is not maintainable and another thing to say that the appellate Court should
         exercise its discretion with circumspection.

         12. It would be useful to refer to observations made by the Apex Court in Shah
         Babulal Khimji v. Jayaben D. Kania reported in (1981) 4 SCC 8 : AIR 1981 SC
         1786. While holding that Letters Patent Appeal against a judgment and order
         passed under Order 43, Rule 1 of the Code of Civil Procedure by the Single Judge
         bench of this High Court is maintainable before the Division Bench, the Hon'ble
         Supreme Court laid down the considerations which should prevail with the Division
         Bench while hearing an appeal. In paragraph 119, the Apex Court observed:
            “That the trial Judge being a senior Court with vast experience of various
            branches of law occupying a very high status should be trusted to pass
            discretionary or interlocutory orders with due regard to the well settled
            principles of civil justice. Thus, any discretion exercised or routine orders
            passed by the trial Judge in the course of the suit which may cause some
            inconvenience or, to some extent, prejudice one party or the other cannot be
            treated as a judgment otherwise the appellate Court (Division Bench) will
            be flooded with appeals from all kinds of orders passed by the trial Judge.
            The Courts must give sufficient allowance to the trial Judge and raise a
            presumption that any discretionary order which he passes must be presumed
            to be correct unless it is ex facie legally erroneous or causes grave and
            substantial injustice.”
            What is said by the Apex Court in the aforesaid paragraph can generally be
            applied to an order passed by a Judge of the City Civil Court who is also a
            Judge with vast experience gained by trying variety of litigations arising in
            the commercial city of Mumbai and who also belong to the cadre of the
            District Judge. He should be trusted to pass a discretionary order granting or
            refusing to grant ad interim injunction with due regard to the well settled
            principles of civil justice. Any discretion exercised by him may not be lightly
            interfered unless it is shown that the exercise of discretion was so very much
            erroneous that no Court would have exercised it in that manner.
                                                                       (emphasis supplied)

2.             Learned counsel appearing on behalf of the Appellants has submitted

that in the facts of the present case, there was an agreement between the

predecessors of the Appellants and Nitiraj Properties Pvt. Ltd. dated 29 th July,

1988. Sometime in July 2022, the Respondent-society filed an application before


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District Deputy Registrar (DDR) seeking grant of deemed conveyance. On 25 th

September 2023, the DDR granted deemed conveyance and also directed the

Respondent-society to simultaneously execute deed of perpetual lease with the

Appellants as per the terms and conditions of the agreement dated 29 th July, 1988.

3.         On 16th February, 2024, the Appellants challenged the said order of

DDR before this Court which was later on withdrawn with the liberty to file a suit

before the Civil Court. It is the Appellant’s contention that there was an attempt on

the part of the Respondent-society to fraudulently insert restricted clauses in the

draft lease deed violating the terms and conditions of the said agreement and the

Respondent-society illegally sought to execute and register the deemed conveyance

without finalizing and executing the lease deed as contemplated by the order of the

DDR in favour of the Appellant.

4.         Learned counsel on behalf of the Appellants, Mr. Thorat has drawn my

attention to the certificate of deemed conveyance dated 25 th September 2023

which has been issued in favour of the Respondent-society which categorically

stipulates that on receipt of the deemed conveyance, the Respondent-society will

execute lease deed in favour of the Appellant on the portion of land admeasuring

891 sq. mtrs. for a term of 999 years (renewable) at a nominal annual rent of Rs.

1/- and also permit the opponent land owners to utilize road set back area (FSI) in

respect of 190.74 sq. mts. It is his contention that this has not been done so far and

refusal of the ad-interim relief by the learned Trial Court by way of impugned

judgment has caused the Appellants prejudice.




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5.          Learned counsel appearing on behalf of the Respondent-society has

submitted that he has been given instructions by the society that they are in the

process of finalizing this lease deed and the relevant drafts have been exchanged

with the advocate for the Appellant. However, there seems to be some dispute

between the managing committee members as to who exactly manages the society

and there are two factions which have been formed in the Managing Committee.

Mr. Jay Bhatia who appears on behalf of one of the faction of the managing

committee disputes the authority given to learned counsel Mr. Viraj Parikh

appearing on behalf of the Respondent-society.

6.          Be that as it may, on a perusal of the impugned order, it is seen that the

Notice of Motion praying for the relief as sought for by the Appellant is still

pending adjudication before the Trial Court. In view thereof, since the Appellants

have     preferred   this   Appeal     from        Order   against   the   non-grant     of

injunction/simpliciter adjournment by way of the impugned order. It will be

beneficial if the Notice of Motion No. 4272 of 2025 be heard expeditiously. In

view of the aforesaid, this Appeal from Order is disposed of in terms of the

following order: -

                                        ORDER

i)          Notice of Motion No. 4272 of 2025 filed before the Trial Court be

decided as expeditiously as possible. No adjournments to be sought by both parties

at the hearing of the aforesaid Notice of Motion.




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ii)        In the meantime, the Respondent-society to maintain status quo in

respect of the Appellant’s right in the said property of 891 sq. mtrs. and then road

set back area (FSI) of 190.74 sq. mtrs..

iii)       All the contentions of the parties are expressly kept open. It is clarified

that this Court has not expressed its view on the merits of the case. Appeal from

Order is disposed off in the aforesaid terms. No Costs.

iv)        Interim application(s), if any, also stand disposed off.




                                            (AARTI SATHE, J.)




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