Mrs. Dipashri Mistry Nee Sarvagod v. Mr. Riyaz Abdul Majid Goghari And ANR

5-wp-3926-2019.odt Shailaja

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE SIDE JURISDICTION WRIT PETITION NO.3926 OF 2019 Dipashri Mistry nee Sarvagod ] Petitioner Vs.

Riyaz Abdul Majid Goghari and Anr. ] Respondents .....

Mr. Nusrat Shah a/w Ema Almeida, Kevin Gala and Samaa Shah i/b Naazish Shah, Advocate for the Petitioner.

.....

CORAM : R.G. KETKAR, J.

DATE : 21st JUNE, 2019.

P.C.

Heard Mr. Shah, learned Counsel for the petitioner. 2.

By this Petition under Article 227 of the Constitution of India, the petitioner has challenged the order dated 15th December, 2018 passed by the learned trial Judge blow Exhibit 10 in L.E. & C. Suit No.32/37 of 2014. By that order, the learned trial Judge rejected application Exhibit 10 made by the petitioner/plaintiff. The petitioner/plaintiff filed application Exhibit 10 for appointment of Court Receiver, restricting defendants No.1 and 2 from parting with possession of the suit premises and for recovery of arrears of compensation of Rs.4,77,307,68/-.

During the Course of hearing before the trial Court, the petitioner/plaintiff restricted prayer only for recovery of arrears of compensation of Rs.4,77,307,68/-.

3.

Petition is instituted on 29th January, 2019. From perusal of the application, it is evident that the application is made under Order-XV-A of the

5-wp-3926-2019.odt Code of Civil Procedure, 1908 (for short 'C.P.C'). In view of the decision of this Court in Colaba Central Co-operative Consumer Wholesale and Retail Stores Ltd. (Alias Sahakar Bhandar) v/s Kusumben Kantilal Shah, 2004 (1) Bom. C.R. 547, order passed under Order-XV-A of the C.P.C affects substantive rights of the parties. In view of this decision, the petitioner has an equally efficacious, alternate statutory remedy of filing revision application before the Appellate Bench of the Court of Small Causes. 4.

In view thereof, Mr. Shah seeks permission to withdraw this Petition with liberty to file revision application before the Appellate Bench of the Court of Small Causes at Mumbai. He submits that time spent by the petitioner in prosecuting this Petition bona fide in this Court from 29th January, 2019 till date may be excluded while considering issue of limitation. 5.

In view thereof, on the motion made by Mr. Shah, Petition is allowed to be withdrawn and as such is disposed of with liberty as prayed for. As the petitioner was prosecuting this Petition bona fide in this Court, time spent by the petitioner from 29th January, 2019 till date shall be excluded while considering the issue of limitation. It is made clear that I have not examined merits of the case. All the contentions of the parties on merits are expressly kept open.

[R.G. KETKAR, J.]