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 09th 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. Bombay1 has held that an order granting or refusing an ad-interim relief also is an order which is 1. 2003 SCC OnLine Bom 89 Tiwari 1 AO 683-25.DOC 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 29th July, 1988. Sometime in July 2022, the Respondent-society filed an application before Tiwari 1 AO 683-25.DOC 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 29th 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 25th 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. Tiwari 1 AO 683-25.DOC 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. Tiwari 1 AO 683-25.DOC 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.) Tiwari