1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO.274 OF 2010 Ashok Namdeo Gaikwad .. Appellant Versus Municipal Corporation of Gr. Mumbai .. Respondent Mr.P.K.Dhakephalkar, Senior Advocate i/b. S.R.Bhalekar for appellant Mr.Vinod Mahadik for respondent No.1 Mr.S.B.Sarvankar, Sub-Engineer (Maint) R/C Ward BMC present. CORAM : S.C.DHARMADHIKARI, J. DATE : 23rd March 2010. P.C.: 1] The appellant is aggrieved by an ad-interim order passed by the trial court and that is how the subject appeal. 2] The appellant is the original plaintiff who has filed L.C.Suit No. 551 of 2010 in the trial court praying for a declaration that the defendant Corporation who is respondent before me has tress passed upon the immovable property being Final Plot No.375, 376, 377 and 379 admeasuring about 3000 sq.mtrs and located at Ram Mandir Road, Borivali (West) Mumbai 400 092. 3] The other relief sought in the suit is that of a declaration that the act of the Corporation in putting up and constructing the compound wall purportedly and allegedly dividing the suit property from that of the 2 Corporation property is illegal. The permanent order and injunction restraining such activity is sought in the suit as well. In furtherance of this final relief, interim reliefs were sought in the trial court and for that purpose a notice of motion was moved at the relevant time which was not numbered but on account of urgency the trial court passed an order thereon on 12th March 2010 directing parties to maintain status quo till 15th March 2010. 4] The grievance of the appellant original plaintiff before me is that the trial court without any affidavit of the Corporation and relying upon the documents produced across the bar held that the defendant has given sufficient opportunity to the appellant - plaintiff and due process of law has been followed. Therefore, the attempt is now made to complete the construction of compound wall is supported by no material. 5] When the matter was placed before me today, I heard Mr.Dhakephalkar, learned Senior Counsel for appellant and the learned Counsel for Corporation respondent at some length. 6] Mr. Sarvankar, Sub-Engineer of the subject ward of the Corporation is present with records. It was stated that the construction is on municipal property viz., final Plot No.375. Further, it is stated that the Corporation wants to safeguard its own property and that is how the compound wall is being constructed so as to prevent any encroachment thereon. No other construction activity has been done by Corporation, save and except putting this compound wall. 3 7] Mr.Dhakephalkar, learned Senior Counsel states that the appellant plaintiff has no opportunity to inspect the record and to meet the contents of the documents which were tendered across the bar at the trial court and now relied upon. These documents are not placed on affidavit. Therefore, grave loss and prejudice will be caused if the Court passes any order relying upon these documents. 8] In the light of the fact that the respondent defendant is seeking time to place these documents on record and further the concerned Sub- Engineer present in court making a statement that save and except the construction of compound wall which is presently completed to the extent of nearly 50 %, no other construction activity would be undertaken by the Corporation, it is directed that the Corporation shall complete the construction of the compound wall as per the documents which are sought to be relied upon but such construction shall abide by the final order in the notice of motion. It is further directed that in the event the Corporation cannot support its stand that the construction of the wall is on municipal property, then, the Corporation shall abide by the final orders in the notice of motion, subject to its legal rights and demolish the compound wall at its own expenses. 9] It is only accepting the statement of concerned Sub-Engineer as undertaking to this Court and issuing further directions so as to expedite the pending notice motion, that this court is not inclined to interfere at this stage. Let the Corporation place its affidavit in the trial court within 4 a period of two weeks from today with advance copies to the plaintiff's advocate in the trial court. Plaintiff's Advocate shall file his rejoinder affidavit, if any, within ten days thereafter. The trial court to endeavour and dispose of the notice of motion within eight weeks from the date of receipt of a copy of this order. 10] This Court has not expressed any final opinion on the merits of the controversy. Further, the notice of motion being pending and considering that the Corporation has stated before me that the construction is on its own property, that I have not entertained the subject appeal. It is disposed of by keeping open all pleas and objections. The trial court to dispose of the notice of motion without being influenced by any observations in the ad-interim order and disposal of this appeal. 11] At this stage, Mr.Dhakephalkar on instructions makes a statement that there is a old temple to which the devotees' access may be blocked if the wall is constructed. Upon the court's query, the Counsel for Corporation clarifies on instructions that the construction of the wall would be undertaken and completed in such a manner so that access to the temple if any would not be obstructed and interfered. Even this direction and such order are without prejudice to the rights and contentions of parties. Appeal disposed of in the above terms. Civil application, if any, shall stand dismissed in view of disposal of the appeal. (S.C.DHARMADHIKARI, J)