- 1 - 901-cas-140 of 2011 srj IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPLICATION NO.140 OF 2011 IN SECOND APPEAL NO.56 OF 2011 Amol N. Gadhave .. Applicant. V/s. Ransing K. Gadhave & Others. .. Respondents. Mr. R.A.Thorat i/b. Mr. P. B. Gujar, for Applicant. Mr. V. S. Talkute, for Respondent Nos. 1 to 3. CORAM: G.S.GODBOLE,J. DATE : 18th OCTOBER, 2011. P.C: 1 By separate order passed today, Second Appeal is admitted. 2 In this Civil Application, a prayer for injunction is made. Averments in the Civil Application indicate that initially, application for injunction was filed which was dismissed on 3rd November, 2008 and Misc. Civil Appeal No.132 of 2008 filed by the Appellants was allowed on 9th January, 2009. Writ Petition No.2041 of 2009 filed by the Respondents was withdrawn on 8th April, 2009. After dismissal of the suit, an application was filed for continuing the injunction and the said application Exhibit-5 was allowed. Consequently, injunction operated till - 2 - 901-cas-140 of 2011 the dismissal of the Civil Appeal No.127 of 2010. After the dismissal of the Appeal, on application Exhibit 63, order of status-quo was continued and that order of status-quo is operating till today. 3 Mr. Thorat, learned Advocate for the Appellant prayed for continuing the status-quo order. He drew my attention to the City Survey Map which clearly shows that City Survey No.868 was open court yard. On the other hand, Mr. Talkute has placed on record the photographs showing the stage of construction which indicates that the RCC work on the entire ground floor is over the slab above ground floor has been cast. 4 Mr. Talkute also drew my attention to the finding of the District Court to the effect that a passage having 6ft width has been kept open for ingress and egress to the properties bearing Survey Nos.868, 865 and 869 which are owned by the Appellants. 5 Considering the nature of controversy and the fact that the construction is half completed, I dispose off this Civil Application by passing the following order:- (i) The earlier order of status-quo is modified to the limited extent indicated herein after; - 3 - 901-cas-140 of 2011 (ii) No further horizontal or vertical construction shall be made on the portion of land covered by City Survey No.868. However, in respect of the construction which is already made on the portion of the land covered by City Survey No.868, the Respondents can do the finishing work like plastering, painting, putting doors and windows and supplying and providing electricity etc., They can also use the said portion, subject to the right of the Appellant to file an application for appointment of Court Receiver in respect of that portion and/or for directing to deposit reasonable monthly compensation, if the Respondents continue to occupy and/are allowed to occupy the constructed or after finishing work covering City Survey No.868. (iii) In so far as the construction covering City Survey Nos. 867, 870 and 871 is concerned, there will be no order of injunction and the Respondents can complete even the vertical construction of the building covering the aforesaid three City Survey Numbers. (iv) No equity of whatever nature will be claimed by the Respondents for being permitted to carry out and complete the finishing work in respect of the City Survey No.868 and it is - 4 - 901-cas-140 of 2011 clarified that they can commence such work only after they file a written undertaking in this Court within a period of four weeks, clearly stating that no equity will be claimed by them respect of the construction covering City Survey No.868 and in case, Appeal is allowed, they will remove/ demolish such construction at their own costs or will abide by such order as may be passed by this court at the time of final hearing of the Second Appeal. The undertaking will be subject to the right of the Respondents to prosecute further remedies available in the Court. (v) No third party rights will be created in respect of the portion of the building covered by City Survey No.868. (vi) In so far as the passage having 6ft width is concerned, no further construction will be made in the said passage and no article will be stored in the said passage by both the parties and the entire passage will be kept open for ingress and egress. (vii) Rule is made partly absolute in the aforesaid terms with no order as to costs. (viii) If any application for appointment of Court Receiver or deposit of compensation is filed, same will be considered on its own merit, including the order admitting Second Appeal. At - 5 - 901-cas-140 of 2011 the hearing of such application, the Respondents will be free to raise all contentions including contention about the maintainability of said application. (G.S.GODBOLE,J.)