IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION

APPEAL FROM ORDER NO.1132 OF 2011 WITH CIVIL APPLICATION NO.1507 OF 2011

Vasantt Gardens Co-operative Hsg.Soceity Ltd. .. Appellant V/s Smt.Jaswanti Ramniklal Trust & Ors. .. Respondents

AND APPEAL FROM ORDER NO.1133 OF 2011 WITH CIVIL APPLICATION NO.1508 OF 2011

Greenash Co-operative Housing Society Ltd. & Ors. .. Appellants V/s

Smt.Jaswanti Ramniklal Trust & Ors. .. Respondents

Mr.M.D.Siodia, with Mr.Nikhil Agarwal and Mr.Kaushik Singh i/by D.S.Retiwala for the appellants in AO No.1132 of 2011.

Mr.Anil Singh i/by Mr.A.R.Singh for Respondent Nos.1 to 9 in both the appeals.

Mr.P.K.Dhakephalkar, senior Advocate i/by Mr.Sandesh Deshpande for the appellants in AO No.1133 of 2011.

Mr.M.D.Siodia with Mr.Nikhil Agarwal and Mr.Kaushik Singh i/by D.S.Retiwala for Respondent No.10 in AO No.1133 of 2011.

CORAM: R.G.KETKAR, J. DATE: 7th March, 2012.

P.C.:

Appeal from Order Nos.1132/2011 & 1133/2011;

1. Heard Mr.P.K.Dhakephalkar, learned senior counsel for the

appellants in AO No.1133 of 2011, Mr.M.D.Siodia, learned

counsel for the appellants in AO No.1132 of 2011, Mr.Anil Singh, learned counsel for Respondent Nos.1 to 9 in both the appeals and Mr.M.D.Siodia, learned counsel for Respondent No.10 in AO No. 1133 of 2011 at length.

2. Admit. Learned counsel for the Respondents waive service. Hearing of the appeals is expedited.

CA 1507/2011 in AO 1132/2011 & CA 1508/2011 in AO 1133/2011:

• 1. Heard learned counsel for the parties.
• 2. Rule. Learned counsel for the Respondents waive service.
• 3. By these applications the applicants seek stay of the judgment and order dated 25.08.2011 passed by the learned Judge of the City Civil & Sessions Court, Greater Mumbai in the Notice of Motion No.1682 of 2010. By that order the learned trial Judge allowed the notice of motion taken out by the Respondent Nos.1 to 9 (original plaintiffs) in terms of prayer clause (a) of the notice of motion, and restrained each of the Defendants, their servants and agents etc., from obstructing, interfering with original plaintiffs' full and free ingress and egress day and night from the plot bearing CTS No.29/16D through internal road of the layout as

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means of ingress and egress till the disposal of the suit.

• 4. The learned trial Judge has issued injunction on the basis of clause (g) of Covenant deed, as also the Conveyance Deed dated 21.04.1994. By clause (g) of the Covenant Deed, the guarantor (Defendant No.1 in the present case) agreed with each of the grantee viz.some of the plaintiffs herein to grant a proper right of way/access from the property owned by it and more particularly described in 5th schedule thereto, which was written and delineated with red colour boundary line on the plan annexed thereto and marked 'A' to the property owned by each of the grantee, which is more particularly described in the 1st to 4th schedules thereunder written and delineated with blue blue colour boundary line on the plan annexed thereto and makred 'A' free of costs.
• 5. The Defendant No.1 was to grant way/access either from the development road and/or from the property more particularly described in 5th schedule to the Deed of Covenant. Prima-facie, no material is produced on record by the applicants to indicate that the plaintiffs have given up their right in Covenant Deed, as also the Conveyance Deed. In so far as providing access through the

development road is concerned, it is common knowledge that after the road is developed as D.P.road, it becomes the public property. The learned trial Judge on the basis of the material on record has prima-facie come to the conclusion that the plaintiffs have made out a case for grant of interim relief as also the balance of convenience lies in favour of the plaintiffs in issuing the injunction. Considering the controversy between the parties and the material on record, I do not find that the applicants have made out a case for granting stay to the impugned order. However, at the same time, the Respondent Nos.1 to 9 (plaintiffs) shall ensure that the road which is in dispute is not obstructed by them by parking their vehicles as also they will not cause any obstruction to the free flow of traffic.

6. In view of this, subject to the Respondent Nos.1 to 9 (plaintiffs) filing an undertaking within two weeks from today to the effect that they will not park their vehicles on the 12 meter wide internal road which is in dispute, as also to the effect that they will not cause any obstruction to the free flow of the traffic, the prayer for stay made by the applicants is refused. At the request of learned counsel for the applicants in the civil application No.1508/2011 in

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the AO 1133 of 2011, operation of this order is stayed for four weeks from today.

(R.G.KETKAR, J.)