1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO.306 OF 2010 M/s Omkar Builders and Developers Pvt Ltd .. Appellants Vs 1.Mr Ramesh Ramdas Mokal and ors. .. Respondents Mr Chirag Balsara with Mr Swapnil Bangur and Mr Aftab Diamond Walla with Mr Jayesh Vyas and M.S.Komal Patil i/b M/s Divya Shah Associates, for the appellants. Mr Pratap F Singh for respondent no.1. Mr J.J.Xavier, for respondent-BMC. Ms Poornima Kaluse h/f Mr J.G.Reddy for respondent no.3. CORAM : R.C.CHAVAN, J. DATE : 01/07/2010 PC: 1. This is an appeal against an order dated 16.12.2009 passed by the learned Judge, City Civil Court, Mumbai, on Notice of Motion No.2155 of 2009 and an order dated 5.2.2010 on Review Petition No.2 of 2010 in Short Cause Suit No.2720 of 2009, whereby the learned Judge allowed an application for injunction filed by the plaintiff-Ramesh Ramdas Mokal and T 2 restrained the appellants from demolishing four public toilets, situated at CTS No.64 (Part) near Jai Ambe SRA Co-operative Housing Society and refused to review the order after the Review Application was filed. 2. Considering the nature of grievance raised by the learned counsel for the parties, the Appeal from order is taken up for final disposal at the stage of admission. I have heard learned counsel for the parties at length and they have filed their detailed affidavits and photographs. 3. Learned counsel for the original plaintiff was right in submitting that under Order 41 rule 1 of CPC an appeal would lie against an order on a Review Petition only if the review is allowed. But, as clarified by the learned counsel for the appellants, the appeal is not only against the order rejecting the review application but also against the original order passed in Notice of Motion No.2155 of 2009. The learned counsel for the original plaintiff submitted that in that case the appeal is barred by limitation. Ordinarily it would have been necessary for the appellants to seek condonation of delay and explain as to why the appeal is not filed within time. But since the applicant had sought a review which was rejected, this delay in filing appeal 3 against the order passed in the Notice of Motion No.2155 of 2009 could be and ought to be condoned and appeal entertained. 4. The plaintiff had come with a case that four toilet blocks are, in fact, situated outside the area declared as slum in CTS No.61 (part), which contention the learned trial Judge had readily accepted. Even a bare look at the map which was produced before the trial Judge would show that instead of going by a straight line boundary, the learned Judge had permitted the respondent-plaintiff to carve out only those four toilet blocks from CTS No.61. Learned counsel for the plaintiff has tendered a detailed affidavit today and has sought to demonstrate with reference to several photographs that the boundary of the slum area is, in fact, beyond those toilet blocks. I have seen those photographs. The boundary which the plaintiff seeks to show are certain barricades or fencing which has been raised by the developers for the purpose of carrying out the development activities for the sake of safety of citizens. That does not mean that it is a boundary demarcating the area of the slum. 5. The learned counsel for the respondent-corporation also states that those toilet blocks are, in fact, in CTS No.61 (part) 4 and the area is declared as slum. The learned counsel for the Municipal Corporation also states that those toilet blocks are required to be demolished as other toilet blocks have been constructed. The grievance of the plaintiff, that the newly constructed toilet blocks are meant for the residents of other societies, is superficial since the number of toilet blocks now constructed are about 64, which are more than the original toilet blocks, i.e. 24 in number. Therefore, the new toilet blocks are sufficient to take care of the needs of slum dwellers around those toilet blocks, whether in this or that society. 6. The learned trial Judge has held that the demolition of the toilet blocks would cause inconvenience to the slum dwellers, without realizing the fact that 64 new toilet blocks have been constructed and have been made available for the slum dwellers. In view of this, it is clear that the Learned trial Judge has, first, not even cared to find out as to what are the boundaries of the area ordered to be redeveloped as slum, and secondly, has failed to consider that the adequate number of toilet blocks are constructed. He should have seen that the order passed by him has resulted in putting restraint on development activities which had commenced after the requisite permissions had been granted by the Municipal Corporation and the SRA. 7. Therefore, the impugned order on Notice of Motion 5 No.2155 of 2009 cannot be sustained. The learned Judge should, in fact, have taken note of these things when the matter was brought in review before him. In view of this, the Appeal from order is allowed. The impugned order on Notice of Motion No.2155 of 2009 is set aside and injunction granted is vacated. 8. At the request of the learned counsel for the respondent- plaintiff, the order of injunction to continue for a period of four weeks. (R.C.Chavan)