IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORDINARY ORDINARY ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION NOTICE NOTICE NOTICE OF MOTION NO. 2110 OF 2008 OF MOTION NO. 2110 OF 2008 OF MOTION NO. 2110 OF 2008 inin in APPEAL APPEAL APPEAL NO. 843 OF 2006 NO. 843 OF 2006 NO. 843 OF 2006 inin in NOTICE NOTICE NOTICE OF MOTION NO.1638 OF 2005 OF MOTION NO.1638 OF 2005 OF MOTION NO.1638 OF 2005 inin in SUIT SUIT SUIT NO.1526 OF 2005 NO.1526 OF 2005 NO.1526 OF 2005 M/s Earth Builders .. Applicant Vs. Dani Sadan Cooperative Housing Society Ltd & anr .. Respondents Mr.P.K.Samdani, Sr.Adv with Mr.V.K.Merchant i/b M/s Kishore Thakordas & Co for Applicant Mr.Tushar Cooper a/w Ms.Mehernaaz Sam Wadia i.b Hariani & Co for for Respondent no.1 CORAM CORAM CORAM : Dr.Radhakrishnan and : Dr.Radhakrishnan and : Dr.Radhakrishnan and A.V.Nirgude, A.V.Nirgude, A.V.Nirgude, JJ JJ JJ DATED DATED DATED : 1st July, 2008 : 1st July, 2008 : 1st July, 2008 P.C. P.C. P.C. 1. Heard learned counsel for the applicant and learned counsel for the respondents. We have perused the affidavit in support of the Notice of motion. We have also perused the Architect’s report dt.13.6.2008 as well as the report relating to retaining of the wall of the property appurtenant behind Dani Sadan Cooperative Housing Society Ltd, Walkeshkar Road, Mumbai which is annexed as Exhibit E to the affidavit in support. We have also perused the photographs which are 2 annexed to the affidavit in support at page nos. 15 to 20. We have also perused the drawings produced by the Consulting Engineer Mr.U.N.Kamat showing the micropiling work to be done at two levels. 2. Having regard to the aforesaid facts and circumstances, the Notice of motion is made absolute in terms of prayer clauses (a). However, the same will be subject to the conditions which we had earlier imposed by our order dt. 20.6.2008 i.e. to say that all these measures which will be taken up by the applicants will be without prejudice to the rights and contentions of the respondent no.1 and except for the purpose of preventing any further caving in and to protecting the 1st and 2nd retaining wall in the disputed portions of the land which is shown in the plan annexed at page 14 of the affidavit and the entire exercise is to prevent further caving in. It is made clear that the applicants under this order shall not carry out any construction activity in the disputed portion of the land which is shown in red except for the above purpose. 3. Having regard to the facts and circumstances of the case and having perused the photographs at 3 page 18 in the affidavit in support of the Notice of motion, the respondent no.1 is directed to take appropriate measures and steps to prevent accumulation of water in the storm water drain which is shown adjacent to the retaining wall in the photographs. Mr.Cooper assures that the respondent no.1 will take appropriate measures to ensure that there is no collection of water in that area. Needless to state that when the aforesaid work is carried out by the applicants, one of the representative of the respondent no. 1 can also remain present and preferably an office bearer. Notice of Motion is disposed of accordingly. { A.V.Nirgude, J } A.V.Nirgude, J } A.V.Nirgude, J } { Dr.S.Radhakrishnan, J } Dr.S.Radhakrishnan, J } Dr.S.Radhakrishnan, J }