1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO. 206 OF 2008 APPEAL FROM ORDER NO. 206 OF 2008 APPEAL FROM ORDER NO. 206 OF 2008 IN NOTICE OF MOTION NO. 1931 OF 2007 IN S.C. SUIT NO. 1527 OF 2007 Paru Bahadur Dilbahadur Thapa ... Appellant (Org. Defendant) Versus IOm Shree Swati Manor C.H.S. Ltd. Respondent (Org. Plaintiff) Mr. S.S.Redekar, Advocate for the appellant. Mr. Paresh S. Madkaikar, Advocate, for the resondent. CORAM: J.H.BHATIA,J. CORAM: J.H.BHATIA,J. CORAM: J.H.BHATIA,J. DATE: 10th March,2008. DATE: 10th March,2008. DATE: 10th March,2008. P.C. P.C. P.C. 1. Heard learned Counsel for the parties. Perused the pleadings of the parties and the impugned order. 2. The appellant before this Court is the original defendant in the suit field by the respondent-Society. It is the case of the plaintiff that Bahadur Dilbahadur Thapa, who was the husband of the defendant, was a 2 watchman of the plaintiff-society since 1994-95. He was not provided any residential accommodation by the Society. However, he used to take rest in the open space below the staircase of the building of the Society. However, gradually, he started bringing his household articles and thus encroached upon a space admeasuring 8’ x 10’ beneath the staircase. He had also put up door and thus made a room. Bahadur Dilbahadur Thapa died on 24.4.2000. The defendant filed the Suit No.2000 of 2003 against the present plaintiff-Society claiming that she was in possession of the room admeasuring 10 x 8 sq. ft.below the staircase and she sought temporary injunction restraining the Society from dispossessing her without following due process of law. The suit came to be disposed of in view of the statement made by the Society that it would not dispossess her without following due process of law. According to the plaintiff-society, the defendant has made further encroachment by putting wooden plank, plastic cover and tarpaulin and this is causing nuisance to the Society. Because the material used for this purpose is inflammable, there is a danger of fire which may cause irreparable loss and damage to the building of the society. Therefore, the plaintiff filed the suit for mandatory injunction for removal of such encroachment and by taking out Notice of Motion, the plaintiff-Society sought interim relief of mandatory injunction pending the suit. 3 3. The Notice of Motion was opposed and, according to the defendant, she was always in possession of this disputed area and if the said structure is removed, she would have no latrine for the use of her family and further if the Notice of Motion is granted, it will amount to passing a decree in favour of the plaintiff-society. 4. After hearing the parties, the learned trial Court noted the conduct of the defendant and her claim in Suit No.2000 of 2003 which was restricted to her possession over a portion of 10 x 8 sq. ft. below the staircase. The learned trial court also noted that the plaintiff-society has made a statement that it will not disturb the possession of the defendant over that room or portion below the staircase without following due process of law. Taking into consideration the circumstances, the trial court noted that in the present suit and the Notice of Motion, the plaintiff-society has sought removal of the further encroachment and structure made by the defendant by using wooden planks, plastic cover and tarpaulin which are highly inflammable materials. She used this structure as a latrine and this is causing nuisance to all the members of the Society. Taking into consideration the material used for that structure, which is inflammable, there is danger of fire to the building of the society. In view 4 of this, the Notice of Motion was granted. This order is challenged in the present Appeal by the original defendant. 5. After perusal of the pleadings of the defendant in the earlier suit and her claim, which is restricted to a room or structure admeasuring 10 x 8 sq. ft. only and in view of the statement of the Society that it will not disturb her possession over that portion without following due process of law and the circumstances indicating that the defendant has tried to make further encroachment on the open space of the Society, I find no fault in the impugned order passed by the trial Court. It is true that normally, as interim relief the mandatory injunction should not be granted, but taking into consideration the circumstances and the inflammable material used by the defendant for making encroachment and for creating a latrine I find that this may cause continuous nuisance and danger to the property of the Society and, therefore, it is necessary to remove such encroachment pending the suit also. 6. For the aforesaid reasons, the Appeal stands dismissed. In view of the dismissal of the Appeal, the Civil Application does not survive and stands disposed of accordingly. 5 (J.H.BHATIA,J.) (J.H.BHATIA,J.) (J.H.BHATIA,J.)