action. They were rejected by court. Not only that the appellant filed R.A.E. Suit No.1879 of 2007 in the Small Causes Court at Bombay for declaration that they are tenant in respect of the suit flat and they cannot be dispossessed without due process of law. That suit is pending for hearing and final disposal on its own merits. When this court in five proceedings did not grant relief as claimed by the appellant in Notice of Motion No.765 of 2011, same cannot be granted at the stage when the suit itself is ready for final hearing. Even though the appellant relies on some of the documents i.e. electricity bills, deposit with BEST, and the order passed by Justice Guttal, admittedly, the appellant org.plaintiff is not having the key of the suit flat for the last more than 5 to 6 years and they are not allowed to enter the suit premises. Therefore, at this stage, it is not proper to decide in this Appeal from Order whether the appellant has any right to have the key of the suit flat or whether they were in peaceful possession of the suit flat, as the suit itself is ready for final hearing. In any case, the trial court after considering the evidence on record and documents categorically held in paragraph 30, 31 and 32 of the impugned judgment that appellant failed to show their possession in respect of the suit flat. If the trial court has considered the documents on record, the Appellate court in Appeal against interlocutory order cannot re-appreciate those documents as held by the Apex Court in the matter of Wander Ltd. vs. Antox India P. Ltd. (Supra). In that authority, the Apex Court held that the Appellate Court will not interfere with the exercise of discretion of the court of first instance and substitute its own discretion except where the discretion has been shown to have been exercised arbitrarily,
