IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION CIVIL CIVIL CIVIL WRIT PETITION NO. 1183 OF 2009 WRIT PETITION NO. 1183 OF 2009 WRIT PETITION NO. 1183 OF 2009 Mohanshyam Omprakash Mangala ] .. Petitioner Versus 1. State of Maharashtra & 3 ors. ] .. Respondents Mr. Subhash Jha i/b M/s. Law Global for the petitioner. Mr. P.I. Khemani, AGP, for the respondents No.1 & 4. CORAM: S.B. MHASE & D.B. BHOSALE, JJ. DATED: 2ND FEBRUARY, 2009 P.C. : 1. This Petition is a unique example of a misconceived concept of civil law. As against the petitioner, the respondent No.2-corporation has initiated action of demolition of an unauthorized construction. Notices to the said effect were served on the petitioner. The petitioner was also directed to remove the unauthorized construction and the petitioner was warned that if the same was not done, then the corporation may take appropriate action. 2. The petitioner challenged the said Notices by filing a Civil Suit No.503 of 2006 before the IIIrd : 2 : Joint Civil Judge, Senior Division, Thane. In the said suit an application under Order XXXIX Rule 1 of the Code of Civil Procedure for interim injunction was submitted which was disposed of by the said court by a detailed order on 5th December, 2006 and relief of injunction was refused, the court having found that there is no prima facie case in favour of the petitioner and also no irreparable loss and/or damage will be caused and further that the balance of convenience was not in favour of the petitioner. That order was not challenged by the petitioner and thus it has attained finality between the parties to the said suit. Thereafter the respondent No.2-corporation has demolished the portion of the petitioner’s building sometime in the year 2006. Learned counsel for the petitioner states that immediately after vacation of the order, on the next day, the demolition was carried out. If that is so, it must have been carried out on 6th December, 2006. Thereafter, this Petition is filed in January, 2009, making a prayer for restoration of the building by the corporation. 3. Basically, when a civil suit is pending, Writ Petition cannot be filed because the remedy available has already been availed by the petitioner. Apart from that, in the said suit itself the petitioner can amend : 3 : the Plaint and claim appropriate remedies as against the respondent No.2-corporation. When the matter is of a civil nature between the parties, filing of such a Petition is not contemplated under Article 226 of the Constitution. Apart from that, we have noticed that there are several disputed questions of fact which cannot be gone into in a Writ Petition under Article 226. We are rather surprised that inspite of all this, the petitioner has been advised to file the present Petition. 4. We refrain ourselves from entertaining the Writ Petition and it is, accordingly, rejected. Sd/- Sd/- [D.B. [D.B. [D.B. BHOSALE, J.] BHOSALE, J.] BHOSALE, J.] [S.B. [S.B. [S.B. MHASE, J.] MHASE, J.] MHASE, J.]