1 k IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPLICATION NO. 4596 OF 2011 IN FIRST APPEAL NO.1881 OF 2008 Office Notes, Office Memoranda of Coram, appearances, Court's orders or directions and Registrar's orders Court's or Judge's orders. Mr. K.D. Jha for the Applicant. Mr. Vinod Mahadik for Respondent/BMC. CORAM : K.K.TATED,J. DATE : 20/12/2011. PC: Heard learned counsel for the parties. Learned counsel appearing on behalf of the applicant states that when the First Appeal was on board on 11th October, 2011, the advocate's name was not shown on daily board and therefore, no one appeared on behalf of the appellant when the matter was called out for admission. This court passed an order on 11th October, 2011 and dismissed the appeal for non-prosecution. 2 By this civil application, the applicant seeks to recall the order dated 11th October, 2011 and also direction to respondent to maintain status-quo in respect of the suit premises. The prayer clause (a) and (b) of the civil application read thus: “a) that the First Appeal No.1881 of 2008 and C.A. No. 5149 of 2008 may be restored forthwith and revive the order of Status quo which was running and subsisting in the above matter earlier by setting aside the dismissal order dated 11/10/2011 for default/Non Prosecution of the above First Appeal No.1881 of 2008 and C.A. No.5149 of 2008 and the same be heard on merits; b) That pending hearing and final disposal of the above Civil Application, this Hon’ble Court may be pleased to pass an order and injunction and/or Status quo restraining the Respondent from demolishing the Suit premises or any part thereof and/or executing suit notice u/s 351 dated 15th November, 1997 and Order dated 6th January, 1998 passed by D.M.C. Zone-1 of the Respondents.” 3 The learned counsel appearing on behalf of the applicant further submits that they have good chance of success in the present appeal, therefore, in the interest of justice, the order dated 11th October, 2011 may be recalled and respondent be directed to maintain status- quo in respect of the suit premises. On the other hand, the learned counsel appearing on behalf of respondent vehemently opposed the present civil application. He submits that previously also the appeal was dismissed for default and same was restored by the order dated 26th September, 2011. Again when on 11th October, 2011 the matter was called out no one appeared on behalf of the applicant and therefore, the appeal came to be dismissed for default. He further submits that the blanket order of status-quo cannot be granted in favour of the applicant because initially, the matter was taken up to the Supreme Court, where the Supreme Court passed an 4 order on 24th November, 2009 in Petition (s) for Special Leave to Appeal (Civil) No. 25515 of 2008 directing the parties to maintain status-quo as on that date. The relevant portion of the said order is as under: “We have heard learned counsel for the parties. This petition is directed against the interim order passed in F.A. No.1881 of 2008. We are not inclined to interfere with the interim order. Learned counsel appearing on behalf of the petitioner submitted that whatever unauthorised construction can be regularised, according to the rules, may be regularised on payment of penalty and fine and he undertakes to remove the remaining unauthorised construction forthwith. In the facts and circumstances of the case, we request the High Court to dispose of the appeal as expeditiously as possible. During the pendency of the appeal, status quo, as of today, shall be maintained by the parties. No further directions are necessary to be passed in this special leave petition, which is, accordingly, disposed of.“ 5 He submits that in view of the aforesaid order, the applicant is not entitled to status quo as on today. Therefore, civil application be dismissed with costs. It is an admitted fact that, twice the present appeal was dismissed for default. For the reasons disclosed in the civil application, I am of the opinion that applicant made out case for restoration of First Appeal. In respect of granting status quo as on today in respect of the suit premises is not possible in view of the order passed by the Apex Court on 24th November, 2009. In any case, the respondent – Corporation have to follow the order passed by the Apex Court dated 24th November, 2009. In view of these facts, First Appeal is restored to file. To be heard on its own merit for admission. Civil Application is disposed of with these observations. 6 The learned counsel appearing on behalf of the applicant seeks stay of the order of this court. I find no reason to stay the order and therefore, request is rejected. (K.K.TATED, J.)