Bombay High Court
Mohan S/O Dadarao Rarokar vs Bhaskar S/O Natthuji Kandalkar ... on 5 August, 2021
Bench: S. M. Modak
sa.297.19 1/3
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
Civil Application [CAS] No.349 of 2021
in
Second Appeal No.297 of 2019
Mohan s/o Dadarao Rarokar
vs.
Bhaskar Nathhuji Kandalkar & others
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Office notes, Office Memoranda of
Coram, appearances, Court's orders Court's or Judge's Orders
or directions and Registrar's orders.
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Shri Y.R. Sonkusare, Advocate for the Applicant/Appellant.
Shri S.D. Khati, Advocate for the Respondents.
CORAM : S.M. MODAK, J.
DATE : 5th AUGUST, 2021.
Heard both the sides.
02] The suit for specific performance was
dismissed by the trial Court and it is confirmed by the
first appellate Court. The plaintiff has filed the present
second appeal. This Court has already admitted the
second appeal on 16/07/2019 and has also framed the
substantial questions of law.
03] Pending hearing on final disposal of the
appeal, the respondents have demolished the structure
and that is why the present application for issuing
injunction to the respondents is filed. Along with the
application, few photographs are filed. One open plot is
shown and it is the suit plot, as contended by the
appellant. By way of reply, the respondents state that
earlier there was a small structure, which was in
dilapidated state. It was not fit for habitation.
Accordingly, they have demolished it. They say that
they have constructed a structure consisting of ground
floor. A statement is made by the learned Advocate
sa.297.19 2/3
after taking instructions from the respondents that the
construction is completed. It is also submitted that they
themselves are going to stay in the said house and they
have not created any third party interest.
04] Perusal of the description of the suit property
from the judgment of the trial Court, it reveals that the
plaintiff has agreed to purchase an open plot from the
predecessor in title of the respondents. The plaintiff
does not say that there was a structure of any sort
standing on the suit land. However, the respondents do
admit that the structure was very much there.
05] No doubt, it is true that the second appeal
has been admitted, but there is no direction given by
the Court restraining the respondents from using the
suit land in a particular manner. It may be true that if
the respondents have asked for permission from the
Court, the appellant could have got an opportunity to
say something. However, not seeking permission does
not amount to contravening to any order, because there
was no order as such.
06] So, the temporary injunction, as sought by
the appellant, cannot be granted. At the same time, the
respondents have undertaken that they will abide to the
directions to be given by the Court at the time of final
disposal. So, I think, the respondents can be directed
not to create third party interest and they can be
directed to furnish an undertaking that they will abide
to the directions of this Court. So also, it is necessary to
direct the respondents to file on record the photographs
showing the construction. Hence, the following
directions :
sa.297.19 3/3
i. The respondents are directed to file on record
the photographs showing the construction made
by them.
ii. The respondents are directed not to create any
third party interest in the suit land as well as in
the construction they have made.
iii. The respondents to abide by the directions to be
given by the Court hereinafter and at the time of
final disposal.
iv. The application is disposed of accordingly.
v. The matter be kept on 31st of August, 2021.
JUDGE
*sandesh
