1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO.197 OF 2010 Shyam Niketan Co-operative Housing ..Appellant Vs. The Municipal Corporation of Greater Bombay and anr. ..Respondents ......... Mr.P.S.Gidwani, for appellant. Mr.Vinod Mahadik, for respondent no.1 BMC. Mr.A.M.Talreja, for respondent no.2. ......... CORAM: R.G.KETKAR, J. DATE : 7 th JUNE, 2010. P.C. : The original plaintiff has preferred this First Appeal challenging the judgment and decree dated 2 nd September, 2009 passed by the learned 5 th Adhoc District Judge, City Civil Court, Dindoshi, Mumbai. By the impugned judgment, the learned trial Court dismissed the Suit No.4283 of 1983 instituted by the appellants. The present Appeal arises in the following facts. 2] The plaintiff entered into an agreement with defendant No.2 in the month of November 1980 permitting him to construct the two flats of area about 1200 Sq. ft. at the terrace of the fourth floor. There was a clause in the agreement that the defendant No.2 will carry out repairs of the building namely Shyam Niketan 197-10.sxw 2 before 10 th June, 1981. As per the case of the plaintiff, the defendant No.2 did not carry out the repairs of the said building and, however, utilised the building material for the construction of two flats. There was dispute between the plaintiff and the second defendant and, therefore, the agreement was terminated. The plaintiff instituted Suit No.5116 of 1981 in the City Civil Court at Bombay for injunction. Pending that suit, Notice of Motion was taken out for injunction. But, the Notice of Motion was dismissed. Against that order, Appeal from Order No. 13 of 1981 was filed in this Court. The same was also dismissed. 3] On the basis of the complaint made by the plaintiff, the defendant No.1 Corporation issued stop work notice on 19 th September, 1981. However, the said stop work notice was withdrawn on 3 rd February, 1982. The defendant No.1 accepted the supervision memo submitted by the Architect Mr.Harish Shyamani. Plaintiff, therefore, filed the present suit praying that the action of the first defendant in accepting he supervision memo of the said Architect and permitting the said Architect to proceed with the construction, is contrary to law, illegal and mala fide. Plaintiff also prayed for injunction restraining the said Architect and the second defendant from proceeding further with the construction of the suit flats and accepting the completion certificate submitted by the said Architect and granting occupation certificate to the second defendant by the second Architect. 4] The defendant no.1 - Corporation filed a written statement denying the contentions raised by the plaintiff. It was asserted that the said Architect constructed the flats on the fourth floor as per the sanctioned plan. The stop work notice was issued on the basis of the Court’s order. However, after realising that it is not party to the proceeding and the dispute is essentially between the 197-10.sxw 3 plaintiff and the defendant no.2, the stop work notice was withdrawn by the Corporation. It was further asserted that the Architect carried out the work as per the approved plans. The defendant No.2 also filed written statement and resisted the suit of the plaintiff. 5] On the basis of the material on record, the trial Court came to the conclusion that the condition No.5 of the agreement gave powers of withdrawal of the services of the Architect to the defendant no.2 after commencement certificate is given. Said condition also reserved the right to the defendant no.2 to change the services of the Architect, if he is not satisfied with the services of the Architect. Considering the said condition, the trial Court came to the conclusion that it was not open to the plaintiff to issue communication informing the Corporation that the services of the said Architect were withdrawn. The trial Court during the course of judgment also observed that the plaintiff is granted liberty to take action against the defendant No.2 for damages. The Court also considered the admission given by the PW 1 during the Cross-examination, wherein he admitted that the plaintiff has no authority to change the Architect after commencement certificate was issued by the defendant no.1 – Corporation. The trial Court also recorded that at the time of commencement of work, there was no dispute between the parties. It was also recorded that though the plaintiff has sought injunction restraining the defendant no.2 from proceeding with the construction in terms of prayer “b”, there is nothing to indicate that any order was operating in favour of plaintiff. In fact, it is not in dispute that pending the suit, Notice of Motion was taken out for the said relief which was dismissed. Considering the material on record and the findings, I deem it appropriate to dispose of the appeal without calling the Record and Proceedings in terms of 197-10.sxw 4 Order XLI Rule 11 of the Code of Civil Procedure, 1908. 6] Heard Mr.P.S.Gidwani, learned counsel for appellant-original plaintiff, Mr.Vinod Mahadik, learned counsel for respondent no.1-BMC / original defendant no.1 and Mr.A.M.Talreja, learned counsel for respondent no.2 / original defendant no.2. 7] Learned counsel for appellant reiterates the submissions made in the trial Court and, in addition, submitted that the stop work notice was issued on 19 th September, 1981 which was subsequently withdrawn on 3rd February, 1982. The construction that was carried out between 19 th September, 1981 and 3rd February, 1982 is therefore unauthorised. Therefore, appropriate action is required to be taken against the said unauthorised construction. Mr.Gidwani further stated that the plaintiffs have already instituted a separate suit against the defendant no.2. 8] I do not find any substance in the submissions made on behalf of the appellant. In the first place, it is not the case of the plaintiff that the construction carried out by the defendant no.2 is contrary to the sanctioned plan. Secondly, the Corporation had explained the circumstances in which the stop work notice came to be issued and the circumstances in which it was subsequently withdrawn. I do not find any illegality in the action of the Corporation in withdrawing the stop work notice. In the circumstances, it cannot be said that the construction carried by the defendant no.2 is unauthorised. 9] In view of above, First Appeal is dismissed. It is, however, made clear 197-10.sxw 5 that the observations made herein are only for the purpose of disposal of this First Appeal and will not come in the way of the suit instituted by the plaintiff. The learned trial Judge, who is seized of the suit, shall decide the suit on the basis of material on record in accordance with law uninfluenced by the observations made herein. [R.G. KETKAR, J.] 197-10.sxw