1 caf2844 ssp IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION CIVIL APPLICATION NO.2844 OF 2010 IN FIRST APPEAL NO.726 OF 2006 Pramod Kale & Anr. ...Applicants vs. Sneha Suhas Chaudhari & Ors. ...Respondents Mr.R.V.Govilkar for the applicants Ms Asha Bhambawani for the respondent no.1 Mr.Vinod Mahadik h/f Mr.R.A.Malandkar for respondent nos. 2 and 3 CORAM : A.S.OKA,J. DATE : JULY 13, 2011 P.C.: 1 Heard the learned counsel for the applicants and the learned counsel for the first respondent. This is an application for interim relief made by the Appellant in the First Appeal. After the First Appeal was admitted, this Court passed an ad-interim order on 7th April 2006 on civil application for stay being the Civil Application no.1828 of 2006. The said ad-interim order reads thus : 1 Rule returnable on 22nd June 2006. 2 Till further orders clause (2) of the operative part of the impugned decree will not be executed subject to the condition that the Applicant will not make any additions or alterations to the suit structure in dispute. 3 Till further orders it is also directed that the direction given in the first part of the paragraph 1 of the order dated 26th March 2004 passed by this Court in Civil Application no.254 of 2004 in First Appeal St.no.3284 of 2002 will continue to operate. 4 The Advocate for the Respondent no.1 makes a statement that the aforesaid order dated 26th March 2004 was operating till the disposal of the suit. 2 caf2844 2 The appeal was dismissed for non prosecution as the conditional order regarding filing of paper book was not complied with. Now, the Appeal has been restored by order dated 2nd May 2011. While passing the order of restoration, this Court directed that the present application shall be heard separately. Accordingly, application is taken up for hearing. 3 As stated earlier, Appeal has been admitted. The first part of the impugned decree is of declaration and perpetual injunction. Clause (2) of the decree is of mandatory injunction. Clause (2) of the impugned decree reads thus 2 Issue mandatory injunction directions :- a. Against the Defendant nos.1,2 & 4 directing them to demolish/ remove English Type W.C constructed in the rear common passage of Room no.16 within 60 days from today. b. Against the Defendant nos.1 to 4 directing them to demolish/ remove the iron grill door, wooden door and the iron grill put up on the railing in the common passage running on both the sides of Room no.17 within 60 days from today. 4 On 7th April 2006, this Court has stayed only clause (2) of the operative part of the decree which is a decree of mandatory injunction. No other part of the decree was stayed by this Court. This Court imposed condition that notwithstanding grant of stay, direction given in clause (1) of the order dated 26th March 2004 passed by this 3 caf2844 Court in Civil Application no.254 of 2004 in First Appeal St.no.3284 of 2002 will continue to operate. Order dated 26th March 2004 directs that the suit doors shall be kept open so as to keep the common passage available for open access. There are allegations and rival allegations made by the parties in this application and affidavits filed on record. It is not necessary to go into those allegations. 5 Suffice it to say that as the First Appeal has been admitted, that part of the impugned decree which is of of mandatory injunction of drastic nature will have to be stayed. Order dated 26th March 2004 to which reference has been made earlier, protects the interests of the first respondent. 6 The applicant has filed an undertaking. Undertaking is to keep the suit doors open till the disposal of the Appeal. There are various other statements made in clauses (1) and (4) of the said undertaking. Clause (3) of the undertaking is nothing but an undertaking to abide by the order dated 26th March 2004 and especially clause (1) of the said order. Undertaking contained in clause (3) deserves to be accepted. It needs to be clarified that this Court has not made any adjudication on any allegations and counter allegations in the affidavits of the parties as well as statements made in paragraph 1 of the undertaking. 7 Hence, I pass the following order : i) The undertaking of the appellant in clause (3) of the Affidavit dated 13th July 2011 is accepted. Same is marked as `X for identification. ii)Till the final disposal of the appeal, ad-interim 4 caf2844 relief granted on 7th April 2006 in Civil Application no.1828 of 2006 will continue to operate as interim relief. iii)It is made clear that all contentions of the parties on merits of the Appeal are kept open. JUDGE