LAXMIKANT B MULIK Vs. CHANDRIKA P SANGHAVI

JUDGEMENT

(1.) The plaintiff has come to this Court in its revisional jurisdiction challenging the Order of summary dismissal of his appeal by the Appellate Bench of the Court of Small Causes at Bombay which appeal the plaintiff had preferred from the Order dated 5th October, 1976 passed by the trial Court below Interim Notice No. 4035 of 1976 in the plaintiffs declaratory Suit No. 3611 of 1976.

(2.) In the said declaratory suit the plaintiff took out the aforesaid interim notice for two reliefs: (1) interim injunction pending the suit against the defendants not to disturb the plaintiffs possession of the suit premises till the hearing and final disposal of the said suit and (2) fixation of ad interim rent at the rate, of Rs. 500- per month pending the hearing and final disposal of the said suit. On the said application the trial Court by its order dated 17th July, 1976 issued ad interim injunction in terms of prayer (a) returnable on 26th August 1976 and the trial Court also "Allowed" the plaintiff to deposit at the rate of Rs. 600/- per month from January 76. When the said interim notice came up for final hearing a statement was made before the Court by the learned Advocate on behalf of the defendants to the effect that the defendants would not disturb the plaintiffs possession nor do they intend to do it. In view of the said statement which was recorded, the trial Court discharged the interim notice relating to interim injunction. On the question of fixation of ad interim rent, the trial Court directed the plaintiff to file. "separate application for fixation of rates if necessary." Aggrieved by the aforesaid order, the plaintiff preferred an appeal which was, as stated hereinabove summarily dismissed by the Appellate Court.

(3.) Mr. Morje, the learned Advocate, who appears in support of this petition did not challenge the discharge of the interim notice in so far as it related to the relief of interim injunction pending the suit, particularly in view of the recorded statement before the trial Court of the Advocate on behalf of the defendant. Mr. Morje, however, very strenuously contended that the second part of the trial Courts order was unsustainable and the Appellate Court erred in summarily dismissing the plaintiffs appeal therefrom.