1 CAF 3000 OF 2010 vks IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPLICATION NO.3000 OF 2010 IN FIRST APPEAL NO.1088 OF 2010 The M.C.G.B .. applicant. -versus Kishore Bhimjibhai Patel (deceased) through her legal representatives Smt.Kirtida Kishor Patel and ors .. Respondents. Mr. Narendra Walawalkar, Senior Counsel with J. J. Xavier, i/b R. P. Malandkar, for the applicant. Mr. R.A. Thorat for respondent. CORAM: A. S. OKA, J. DATED: 20th April, 2011 P.C. 1. Heard learned Senior Counsel, appearing for the applicant and learned counsel, appearing for the respondents. Respondents are the original plaintiffs. Appeal has been admitted for final hearing. Clause Nos 2 to 9 of the operative part of the impugned decree read thus:- 1. Suit stands decreed. 2. Defendants are hereby perpetually restrained from obstructing or interfering in carrying out the work of reconstruction of suit premises admeasuring 680 sq ft with B.M. Weall and A.C. Sheet roof situated at C.T.S.no.220, Near 2 CAF 3000 OF 2010 Bhavan’s College Gilbert Hill, Andheri (W), Mumbai as undertaken by the Plaintiffs, pursuant to the order dated 14.10.2004 passed by this Court and strictly as it was in existence prior to the demolition. 3. It is made clear that the plaintiffs shall carry out the work of reconstruction of structure under the supervision of the officers of the Defendant- Corporation, if any, deputed by the Municipal Commissioner of Bombay Municipal Corporation. 4. It is made clear that liberty is given to the Defendants to proceed with the action of demolition of the structure in question, after following due process of law and/or by invoking appropriate provisions of law. 5. The document of Agreement for sale dated 11.4.1990, Exhibit 15 be sent to the Office of Collector, Mumbai for impounding and for recovering the deficit stamp duty and penalty. 6. The document of agreement for sale dated 28.2.1997 Exhibit 17 be sent to the office of Collector, Mumbai for impounding and for recovering the deficit stamp duty and penalty. 7. The Additional Registrar of the City Civil Court, Dindoshi is directed to take necessary steps for sending the aforesaid two documents to the office of the Collector, Mumbai and for impounding these documents under the provisions of section 35 of the Bombay Stamp Act. 8. The original documents, Exhibit 15 and 17 shall not be returned to the plaintiffs till recovery of 3 CAF 3000 OF 2010 deficit stamp duty and penalty. 9. In the circumstances parties are left to bear their own costs. 10.Decree be drawn accordingly. 2. The submission of the learned Senior Counsel appearing for the applicant is that during pendency of the suit, suit structure was demolished and thereafter there was no amendment carried out to the plaint for incorporating appropriate reliefs. He submitted that the impugned decree permits reconstruction of the suit structure and such a drastic relief could not have been granted without there being a specific prayer incorporated in the plaint by carrying out the amendment. The submission is that the reconstruction of unauthorised structure cannot be permitted under the orders of the Court. Learned counsel appearing for respondent invited attention of the Court to order dated 24th June, 2004, passed by the trial Court on Contempt Notice of Motion No. 4992 of 2002. He pointed out that by the said order, respondent-plaintiffs were permitted to reconstruct the suit premises. He submitted that while passing the said order, the trial Court recorded a finding that the work of demolition was carried out during the pendency of the suit when there was ad-interim order of injunction granted by the trial Court operating against respondent. He submitted that the said order dated 24th June, 2004, has not been challenged by the 4 CAF 3000 OF 2010 appellant. He also pointed out the order dated 14th October, 2004 passed by trial Court by which Notice of Motion No.4092 of 2004 was made absolute by directing the concerned police officers not to interfere with or obstruct the plaintiff in any manner in carrying out reconstruction of the suit premises. He stated that both the orders have not been challenged by the appellant. He submitted that in view of the finding already recorded regarding illegal action of demolition in breach of ad- interim injunction, the trial Court had every power to mould the decree and to ensure that status quo ante is restored. He, therefore, submitted that no case is made out for grant of stay. 3. I have considered submissions. It is an admitted position that though the demolition was carried out during the pendency of the suit, amendment was not carried out to the plaint for incorporating relief of reconstruction. If amendment would have been carried out, the appellant corporation would have been put to notice that reconstruction is sought by way of final relief. In the circumstances, a case is made out for grant of stay. However, it must be stated here that the proceedings of Contempt Notice of Motion No.4992 of 2002 were separate proceedings under Rule 2A of Order XXXIX of the Code of Civil Procedure, 1908. The order dated 24th June, 2004 passed on the said Notice of Motion has attained finality and the said order is still executable. 5 CAF 3000 OF 2010 4. It is made clear that it will be open for the parties to act upon the said order dated 24th June, 2004. Hence, I pass the following order. ORDER I) Application is allowed in terms of prayer clause (a). However, it is made clear that the order dated 24th June, 2004, passed in Contempt Notice of Motion No.4992 of 2002 and order dated 14th October, 2004, passed in Notice of Motion No.4092 of 2004, are operative and it will be open for both the parties to act upon the said orders. II) Civil Application is disposed of in above terms. (A. S. OKA, J.)