M/S. JOY AUTO WORKS & ORS versus SUMER BUILDERS (P) LTD. & ANR.

Citation: [2009] 5 S.C.R. 497 · Decided: 02-04-2009 · Supreme Court of India · Bench: ALTAMAS KABIR · Disposal: Appeal(s) allowed
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Judgment (excerpt)

[2009] 5 S.C.R. 497 
M/S. JOY AUTO WORKS & ORS 
A 
... 
v. 
SUMER BUILDERS (P} LTD. & ANR. 
(Civil Appeal No. 2131 of 2009) 
. ,I 
APRIL 2, 2009 
B 
[ALTAMAS KABIR AND DR. MUKUNDAKAM 
SHARMA, JJ.] 
Easement - Right of passage - Appeal against refusal 
of High Court to grant interim prayer to have motorab/e c 
access - Held: Ad-interim protection, as prayed for by 
appellants, should be given in facts and Circumstances of the 
case - Interim order. 
t 
Appellants were in occupation/possession of plot D 
No.878 and a portion of plot No.879, which was 
contiguous to plot no.878. In absence of an actual road 
adjacent to plot No.878, the appellants had motorable 
access to plot no.878 through plot no.879. However, after 
respondent no.1 acquired interest in the remaining 
E 
portion of plot no.879 it allegedly began to obstruct the 
use of such motorable access by the appellants. 
Consequently, the appellants had filed a suit for 
injunction against the respondents. 
" 
.( 
The High Court, by the impugned judgment, rejected 
F 
the interim prayer made by the appellants for relief of 
motorable access during pendency of the suit. 
Allowing the appeal, the Court 
HELD:1. Having regard to the site plan, some G 
provision has to be made even at the . interim stage to 
preserve a motorable access from the main road to the 
premises under the occupation of the appellants so that 
upon development of plot No.879 such a right is not 
H 
497 
498 
SUPREME COURT REPORTS 
[2009] 5 S.C.R. 
A totally extinguished. A mo.torable access should be 
preserved at least till the 40 feet wide DP road adjacent 
, 
to plot No.878 is available to the appellants for egress 
and ingress from their portion of the premises, which is 
otherwise land-locked, till the disposal of the suit. [Para 
26] [508-B-D] 
~ 
8 
•. 
2. The present case is not one where the appellants 
may be suitably compensated by damages in case their 
suit succeeds. In the facts and circumstances of the 
c case, ad-interim protection as prayed for by the 
appellants, should be given. The appellants will be entitled 
to a motorable access from the main road to Plot No.878 
through Plot No.879 and the portion of Plot No.879 in their 
possession either till the disposal of the suit or till the 
D 
construction of the 40 feet wide D.P. Road running 
adjacent to Final Plot No.878 by the Bombay Municipal 
• 
Corporation in terms of the assurance given by it. 
However, once the said 40 feet wide D.P. Road is 
constructed by the Bombay Municipal Corporation, giving 
-· 
clear motorable access to Plot No.878, the Respondent 
r-
No.1 should no longer be deprived of the full enjoyment 
.:: 
of its property and will be entitled to move the Trial Court 
to get the right of way through Plot No.879 granted by this 
order revoked and this order will not stand in the way of 
such an order being passed by the Trial Court, if it is 
F satisfied that sufficient motorable access is available to 
> 
the appellants on account of construction of the 40 feet 
wide D.P. Road. [Paras 27, 28 and 29] [508-F-H; 509-A-F] 
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 
--. 
G 2131 of 2009. 
From the Judgment & Order dated 12.12.2007 of the High 
Court of Judicature at Bombay in Appeal from Order No.432 
of 2006. 
H 
JOY AUTO WORKS & ORS v. SUMER BUILDERS (P) 
499 
LTD. &ANR. 
C.A. Sundram, Kavin Gulati, Ruby Singh Ahuja, Manu 
A 
;> 
Aggarwal, Abeer Kumar and Maulik Karanjawala, for the 
Appellants. 
"\ 
Dushyant Dave, Shekhar Naphade, Narayan Y. Bharati, 
> 
Pradeep, Rajinder Mathur, Atul Y. Chitale, Shweta Maumdar 
B 
and Suchitra Atul Chitale for the Respondents. 
The Judgment of the Court was delivered by 
ALTAMAS KABIR, J.1. Leave granted. 
2. One Khatau Bhanji (hereinafter referred to as 'Bhanji') c 
was said to be the owner of Original Plot No.227 measuring 
4874.95 sq. yards within the city of Mumbai. The Arbitrator 
appointed under the Maharashtra Regional and Town Planning 
t 
Act, 1966 (hereinafter referred to as the '1966 Act') passed an 
D 
Award on 24.2.1962 in respect of the said plot and Original Plot 
No.231 owned by cine Javle. In terms of the Award, Javle lost 
all his rights to Original Plot No.231 while Original Plot No. 227 
was divided into plot No. 878 (1000 sq. yards), plot No.879 
(3647 sq. yds.) and plot No. 877. By virtue of the said Award, 
Bhanji was given Final Plot No. 879 measuring 3647 square 
E 
yards in lieu of Original Plot No.227, while Javle was given plot 
No.878 mea
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