Bombay High Court
Boniface Sutari S/O. Flory Galvin ... vs Monika, Wd/O. Jow Duming Jacinto And Ors on 13 March, 2020
Author: M.S.Karnik
Bench: M.S.Karnik
3. caa 755-18.doc
DDR
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
CIVIL APPLICATION NO. 755 OF 2018
IN
APPEAL FROM ORDER NO. 569 OF 2018
Boniface Sutare s/o. Flory Gavin Sutari ...Applicant
vs.
Monika wd/o. Jow Duming Jacinto
& ors. ...Respondents
...........
Ms. Indira Labde for the applicant.
Mr. D.A. Joseph i/b. Ms. David Associates for respondent No.1.
...........
CORAM : M.S.KARNIK, J.
DATE : 13 MARCH 2020
P.C.:-
Heard learned counsel for the parties.
2. The challenge in this Appeal is to an order dated 21 September 2016 passed by the trial Court. By the impugned order the trial Court directed the present appellant - defendant No.1 to remove unauthorized window forthwith at his own cost.
3. Learned counsel for the applicant assailing the order of the trial Court contended that the trial Court has virtually granted the final relief at the interim stage and that too even before the Notice of Motion is finally decided. She would further submit that as the 1/4
3. caa 755-18.doc room did not have any ventilation, a small window was constructed for which the corporation has already initiated appropriate action. She would further submit that the reply to the Notice of Motion could not be filed as there was some communication gap between the appellant and lawyer.
4. On the other hand, it is the contention of the learned counsel for the respondent No.1 - original plaintiff that the unauthorized window has been constructed in the common wall which stands between the property of the appellant as well as the defendant No.1. He would submit that there is no authorisation for the said window and the same is virtually intruding the privacy of the respondent No.1. He would further submit that even the corporation had issued appropriate notices to remove the unauthorized construction. The prosecution has also been launched against the respondent No.1 for having carried out the unauthorized construction. According to him, defendant No.1 did not even care to file response to the Notice of Motion No. 2475 of 2016 and therefore the trial Court considering all the circumstances on record granted the ad-interim order.
5. In my opinion, considering the prayers sought by the plaintiff in the suit especially prayer clause (b), grant of the ad- interim order virtually amounts to granting the final relief prayed 2/4
3. caa 755-18.doc for by the plaintiff in the suit.
6. Learned counsel for the appellant states that an appropriate reply to the Notice of Motion No. 2475 of 2016 will be filed within a period of two weeks from today.
7. It is made clear that the corporation can always proceed to take appropriate action against unauthorized construction as the notices have already been issued. It is then for the appellant- original defendant No.1 to contest those notices.
8. However, insofar as the suit filed by the plaintiff - present respondent No.1 is concerned, by an ad-interim order the final relief should not have been granted. In any case, Notice of Motion is fixed for hearing. In this view of the matter, the trial Court is directed to hear the Notice of Motion No. 2475 of 2016 expeditiously and decide the same itself within a period of 8 weeks from today. If no reply is filed by the appellant to the Notice of Motion within a period of two weeks from today, the trial Court to proceed with the decision in the Notice of Motion on its own merits even in the absence of the reply by the appellant. It is, however, clarified that the trial Court will not be influenced by any of the observations made by me in this order while deciding the Notice of Motion No. 2475 of 2016.
3/43. caa 755-18.doc
9. In this view of the matter, the order of the trial Court impugned in this appeal deserves to be stayed till the decision of the Notice of Motion.
(M.S.KARNIK, J.) Digitally signed by Diksha Diksha Rane Rane Date:
2020.03.13 17:41:07 +0530 4/4