IMPORTANT POINT
Maintainability of appeal.

JUDGMENT

Dr. B.S. Chauhan, J.- Leave granted.

2. This appeal has been preferred against the judgment and order dated 27.4.2011 passed in Appeal (Lodging) No. 247 of 2011 by the High Court of Bombay confirming the order dated 21.3.2011 of the learned Trial Judge passed on application for interim relief with certain modifications.

3. Facts and circumstances giving rise to this appeal are that: A. Appellant entered into an agreement dated 3.4.1998 with respondent no. 1 for alternate accommodation whereby the appellant was allotted Unit No. 401 i.e. Suit premises ad-measuring 2680 Sq.fts. built up area subject to payment of Rs.13.50 lacs, nominal fee in lieu of appellant’s occupational rights in the godown i.e. the original property. The said agreement was registered on 2.3.2000. The inter-se agreement between the respondent No.1 on one hand and respondent Nos. 2 and 3 dated 7.8.2006 regarding the sale of the part of the accommodation in the same building was served upon the appellant. By that time, the respondent no. 1 had not made any demand from the appellant in terms of the agreement dated 2.3.2000.

(B) The appellant filed Short Cause Suit No. 3703 of 2007 seeking reliefs under the provisions of Maharashtra Ownership of Flats Act, 1963 (hereinafter referred as ‘MOF Act’) before the City Civil Court at Bombay, wherein the respondent nos. 2 and 3 raised a preliminary issue/objection regarding the pecuniary jurisdiction of the City Civil Court which was decided in their favour vide judgment and order dated 20.9.2010, wherein it was held that the said court did not have pecuniary jurisdiction to try the said suit and, thus, the plaint was returned to the appellant/plaintiff with a direction that it may be presented before the appropriate court as required under Order 7 Rule 10 of the Code of Civil Procedure, 1908.

(C.) Appellant instituted the Suit No. 259 of 2011 before the High Court of Bombay on Original Side alongwith the application for interim relief. The application was contested by the respondent Nos. 2 and 3 and the trial Judge after considering the matter at length rejected the prayer for appointing the Receiver but considering the fact that the respondent Nos. 2 and 3 had invested a huge amount to the tune of Rs.11.5 crores and having regard to other factors particularly that they tried to find out the encumbrance position from the Sub-Registrar’s office but the record was not available, passed certain orders, particularly, permitting the respondent nos. 2 and 3 to create a licence in respect of the built up area, admeasuring 2680 Sq. Fts. (suit property) with a further direction that the third party interest would not be created. The premises could be given on leave and licence for a period not exceeding eleven months at a time subject to the conditions that the licensee would be informed of the pendency of the Suit and no interest shall be created in the premises in favour of the licensee. Further, the court with the consent of the parties appointed an Architect to identify the built-up area admeasuring 2680 Sq. fts.

(D) Aggrieved, appellant preferred Appeal (Lodging) No. 247 of 2011 before the Division Bench against the said order dated 21.3.2011 which has been disposed of with certain modifications in the order of the learned Trial Judge, i.e. the licence fee received from the licensee in respect of the built up area admeasuring 2680 Sq. Fts. on the fourth floor, to be identified by the Architect as directed by the learned Trial Judge, shall be deposited with the Prothonotary and Senior Master of that court. Such an amount was further directed to be deposited in the recurring account in a nationalised bank and the subsequent payments would be deposited directly in the said account under intimation to both the parties as well to the Prothonotary and Senior Master of the Court. It was further clarified that in case of any default, it would be open to the parties to move the court for further directions. Hence, t