Bombay High Court
Smt. Sushama A Gupta And Anr. vs Minal Co-Operative Housing Society ... on 6 October, 2025
2025:BHC-AS:42788
6 CAF 1324-18 group Order C3.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
CIVIL APPLICATION NO. 1324 OF 2018
WITH
INTERIM APPLICATION NO. 4513 OF 2023
WITH
INTERIM APPLICATION NO. 7662 OF 2024
IN
FIRST APPEAL NO. 1117 OF 2018
SNEHA
NITIN Sushma A. Gupta and Anr. ...Applicants /
CHAVAN
Appellants
Digitally signed
by SNEHA
NITIN CHAVAN
Versus
Date:
2025.10.06
Minal Co-operative Housing Society Limited and ...Respondents
19:26:00 +0530
Ors.
WITH
INTERIM APPLICATION NO. 7880 OF 2025
IN
FIRST APPEAL NO. 1117 OF 2018
Minal Co-operative Housing Society Limited ...Applicant /
Ori. Respondent
In the matter between:
Sushama A. Gupta and Anr.
...Appellants
Versus
Minal Co-operative Housing Society Limited and ...Respondents
Ors.
****
Appearances on 22.08.2025 :
Mr. Ashok Gupta, Appellant No.2 in person present for the Applicants in
CAF/1324/2018, IA/7662/2024, IA/4513/2023.
Mr. Rubin Vakil a/w Adv. Humera Syed i/b Bishwajeet Mukherjee for
the Applicant in IA/7880/2025.
Mr. Rajiv Chavan, Senior Advocate a/w Ms. Asmi Desai, Ms. Sonam
Pandey, Ms. Pallavi Khale i/b Ms. Komal Punjabi for the Respondent
No.12/MCGM.
Mr. A.R. Patil, Addl. GP for the Respondent No.14/State.
Sneha Chavan 1/22
::: Uploaded on - 06/10/2025 ::: Downloaded on - 06/10/2025 21:32:28 :::
6 CAF 1324-18 group Order C3.doc
Appearances on 06.10.2025 :
None for Applicants in CAF/1324/2018, IA/7662/2024, IA/4513/2023.
Mr. Rubin Vakil i/b Bishwajeet Mukherjee for the Applicant in
IA/7880/2025.
Ms. Pallavi Khale i/b Ms. Komal Punjabi for the Respondent
No.12/MCGM.
****
CORAM : M.M. SATHAYE, J.
RESERVED ON : 22ND AUGUST, 2025
PRONOUNCED ON : 6TH OCTOBER 2025.
ORDER :
1. Heard learned Counsel for the parties. All the above interim
applications are connected to each other and therefore are being taken
up for consideration together.
2. Civil Application No. 1324 of 2018 is filed by the Appellants in
the above First Appeal (Sushma Ashok Gupta and Ashok Gupta) seeking
stay of impugned Judgment and Decree dated 19.01.2018 passed in
L.C. Suit No. 3067 of 1996 by the City Civil Court, Dindoshi, Mumbai.
By order dated 22.03.2018, an ex-parte ad-interim status quo was
granted in this application, in absence of Respondent No.1-Housing
Society.
3. Interim Application No. 7880 of 2025 is filed by Respondent
No.1 in the Appeal - Minal Co-operative Housing Society ('CHS')
praying to vacate above status quo order dated 22.03.2018, or take up
the appeal for final hearing.
4. Interim Application No. 4513 of 2023 is filed by Appellants
(Sushma and Ashok Gupta), praying for appointment of Court Receiver
in respect of area underneath and appurtenant to the notional
6 CAF 1324-18 group Order C3.doc
connection and direction to MCGM to revoke and/or cancel all
permission and sanctions granted towards construction, development,
redevelopment thereon and also directions to the MCGM to 'make sure'
that no construction activities are carried out underneath and
appurtenant to the notional connection.
5. Interim Application No. 7662 of 2024 is filed by the
Appellants (Sushma Gupta and Ashok Gupta) again praying for
appointment of Court Receiver over the suit property, for direction to
Respondent No.12/Municipal Corporation of Greater Mumbai ('MCGM')
to revoke and/or cancel of permission and sanctions granted towards
constructions on the suit property, on the land underneath and
appurtenant to the notional connection between two Society buildings
and to reinstate solid waste drainage line as per approved plan issued
by MCGM in 2008. This application also seeks direction to MCGM to
'make sure' that no construction activities are carried out on land
underneath and appurtenant to notional connection and solid waste
drainage line on suit property.
6. This litigation has a checkered history which will be adverted
to in the subsequent paragraphs. This first appeal is of the year 2018,
admitted on 20.10.2023 and considering large pendency of first appeals
of earlier years, it is not possible to take up the first appeal for final
hearing.
7. Before taking any decision on the pending applications and
prayers made therein, it is necessary to consider prima facie merit in the
challenge raised by the Appellants to impugned Judgment and Decree.
Appellants are Defendant Nos. 6 & 7 only. No other defendants have
6 CAF 1324-18 group Order C3.doc
challenged the decree. Respondent No. 1 is sole Plaintiff - Co-operative
Housing Society. Other Respondents are co-defendants. Parties are
referred to in their original capacity in the Trial Court for the sake of
convenience and better understanding. Name of Defendant No. 6 is
stated as Smt. Shusheela A. Gupta in Trial Court, but it is asserted by
the Appellants in the appeal memo that it is in fact Smt. Sushma Gupta.
8. CASE OF Plaintiff-Society :
8.1) The suit is filed by Plaintiff-Society representing
about 31 flat owners, seeking declaration that the agreement
dated 02.12.1989 executed by father of Defendant No.3
(Shivkumar M. Jalan) in favour of Defendant Nos. 4 to 6 as
illegal and contrary to provisions of the Maharashtra
Ownership of Flats (Regulation of the Promotion of
Construction, Sale, Management and Transfer) Act, 1963
(hereinafter referred to as 'MOFA Act' for short). Declaration is
sought that construction of building/structure made by
Defendant Nos. 4 to 7 ('Ramanuj' Society) is in breach of
statutory requirements of Bombay Municipal Corporation Act,
1888 (hereinafter referred to as 'BMC Act' as short) read with
Applicable Development Control (DC) Rules. A relief of
permanent injunction to restrain Defendant Nos. 4 to 7 from
using, occupying or enjoying the remaining portion and open
spaces, parking spaces, recreational grounds on subject matter
property is also sought. Further injunction is sought from
causing obstruction to the Plaintiff-Society's use, occupation
and enjoyment of the suit plot along with compulsory open
spaces.
6 CAF 1324-18 group Order C3.doc
8.2) Other reliefs in the nature of mandatory injunction
to remove the dividing wall and filling made by Defendant
Nos. 4 to 7 to make entire property at one single level and to
demolish construction made by Defendant Nos. 4 to 7 as well
as direction to MCGM to remove the drainage line put up by
Defendant Nos. 4 to 7, adjacent to the water storage tank of
the Plaintiff-Society is also sought. Further relief of
permanent injunction is also sought to restrain Defendant Nos.
4 to 7 from consuming 'TDR' and carrying out any
construction. Perpetual injunction is sought against the
Defendant Nos. 4 to 7 from obtaining conveyance and title in
respect of property or any part thereof from legal heirs and
representatives of Defendant No.1 and Mr. Shivkumar Jalan.
8.3) There are 31 flats in the Plaintiff-Society. During
pendency of suit, the plot of land is transferred in the name of
Plaintiff-Society by registered Deed of Conveyance dated
20.03.1998 executed by Defendant Nos. 1 to 3 i.e. Podar
Family and Mr. Jalan.
8.4) Defendant No.1 and her husband Ghanshyamdas
Podar (father of Defendant No.2) were original owners of the
suit plot having tenements/chawls on land admeasuring
2552.13 sq. meters (excluding a structure called 'Madhav
Kunj' admeasuring about 750 sq. meters) and its appurtenant
land, which is suit plot bearing OP No. 188, now final plot No.
185 under TPS-II bearing City Survey No. 1611 and 1611/1 to
15 situated at Vile Parle (East), Mumbai- 400 057.
6 CAF 1324-18 group Order C3.doc
8.5) One Mr. Shivkumar Jalan (Father of Defendant No.3)
acquired the development rights for construction of building
of Plaintiff-Society and suit plot under agreement of sale dated
08.08.1979 from the Defendant No.1. The said Mr. Shivkumar
Jalan constructed the Plaintiff-Society (Minal CHS) after
getting necessary sanctions from MCGM as per sanction plan
dated 28.01.1981.
8.6) The original owners have not sold 'Madhav Kunj'
structure under Agreement dated 08.08.1979 to Shri. Jalan.
8.7) On rest of the portion, there was a structure
occupied by tenants. Since Mr. Jalan was unable to negotiate
with few tenants, he demolished only portion of existing
building and constructed the Plaintiff-Society after removing
part of the old structure. The said Mr. Jalan did not convey the
suit plot with the building to Plaintiff-Society as required
under MOFA Act. The Plaintiff-Society got itself registered in
the year 1987-88.
8.8) In Annual General Meeting of the year 1993-1994,
the Plaintiff-Society was given to understand that construction
on the remaining portion of land will be carried out after
showing sanction plan and other documents, however original
Defendant Nos. 4 to 7 (including present Appellants) started
construction immediately. They claimed right of construction
on remaining property as per agreement dated 02.12.1989
executed by Mr. Shivkumar Jalan.
6 CAF 1324-18 group Order C3.doc
8.9) It is the case of the Plaintiff-Society that Mr.
Shivkumar Jalan did not have any right to sell the remaining
portion to Defendant Nos. 4 to 7 when he had agreed to
transfer the property to Plaintiff-Society. Therefore, it is
claimed that agreement dated 02.12.1989 is not binding on
the Society. It is the case of the Plaintiff-Society that as per
agreement dated 08.08.1979, Mr. Jalan was not in a position
to develop remaining property admeasuring about 607.76 sq.
meters which translates into balance FSI of 6550 sq. ft. and
this right of development to the extent of FSI consumption of
6550 sq. ft. only is transferred by Mr. Jalan to Defendant Nos.
4 to 7 vide their agreement dated 02.12.1989.
8.10) According to the Plaintiff-Society under agreement
dated 02.12.1989, the Defendant Nos. 4 to 7 are only entitled
to develop balance FSI to the extent of 6550 sq. ft. and those
flat purchasers should become members of Plaintiff-Society. It
is also the case of Plaintiff-Society that Defendant Nos. 4 to 7
were not allowed to use 'TDR' and Development rights in the
property required to be shared by the Plaintiff-Society. It is
contended that Defendant Nos. 4 to 7 (including Appellants)
have made construction of more than 8000 sq. ft. and have
constructed palatial bungalow for their family in
contravention of their entitlement as well as applicable DC
Rules.
8.11) This use of additional FSI by Defendant Nos. 4 to 7 is
without permission of the Plaintiff-Society and its flat
purchasers. It is further case of Plaintiff-Society that BSES sub-
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station has been illegally shifted by Defendant Nos. 4 to 7
behind the Plaintiff-Society's building and unauthorized
construction of notional connection to join new building i.e.
'Ramanuj' to the Plaintiff-Society's building has also been
constructed and drainage pipeline has been laid near water
tank of the Plaintiff-Society. It is contended that despite
several complaints to MCGM, no action was taken to demolish
the unauthorized construction by Defendant Nos. 4 to 7 and
there is collusion between officers of MCGM and Defendant
Nos. 4 to 7.
DEFENCE OF APPELLANTS
9. Since the impugned decree is challenged only by Defendant
Nos. 6 and 7 (Sushma and Ashok Gupta), as on today there is no
challenge to the impugned decree by Defendant Nos. 4 and 5 who are
family members of present Appellants.
10. The suit is contested by Defendant Nos. 4 to 7 and MCGM
only. No other Defendant has filed written statement.
11. The present Appellants have filed written statement
contending inter alia as under.
11.1) Ownership of Defendant No.1 and her
husband over the suit plot and agreement of sale dated
08.08.1979 executed by them in favour of Mr. Jalan and
construction of Plaintiff-Society by Mr. Jalan on part of the
property is admitted.
11.2) That Mr. Jalan has executed agreement for sale
6 CAF 1324-18 group Order C3.doc
dated 02.12.1989 in their favour. That they have challenged
the deed of conveyance dated 20.03.1998 executed by
Defendant Nos.1 to 3 in favour of the Plaintiff-Society by filing
a suit. That when Mr. Jalan assigned all his right, title and
interest in favour of Defendant Nos. 4 to 6 by deed of
assignment dated 02.12.1989, Defendant No.3 (son of Mr.
Jalan) has no right, title and interest to execute conveyance in
favour of the Plaintiff-Society. It is contended that the Plaintiff-
Society has not challenged the sanctioned plan and amended
plan in favour of the Appellants and therefore relief of
demolition of building cannot be granted.
11.3) They contended that since Mr. Jalan could not
negotiate with some of the tenants, he demolished partially
and constructed Plaintiff-Society's building. That Mr. Jalan has
assigned his right and interest in respect of remaining
undeveloped property to the Appellants by agreement dated
02.12.1989. It is contended that there is no unauthorized
construction of notional connection made by them. That
remaining structure which is not developed by Mr. Jalan was
dilapidated chawl which was declared unsafe and was
therefore demolished. That since all the tenants agreed for
redevelopment, they submitted plan for construction which
was sanctioned by MCGM and construction was completed in
1994. It is contended that BSES sub-station was shifted as per
sanctioned plan.
11.4) It is contended that the agreement dated 02.12.1989
is binding on the Plaintiff-Society. It is contended that relief of
6 CAF 1324-18 group Order C3.doc
cancellation of said agreement is time barred. It is contended
that they have constructed the building and laid drainage and
water line as per the sanctioned plans for which consent of the
Plaintiff is not necessary. Consumption of higher FSI is denied.
It is contended that Mr. Jalan was entitled to develop
remaining portion of the building by evicting remaining
tenants. That the power and authority of Mr. Jalan to
construct new building had been given to the Appellants
under the agreement dated 02.12.1989. The case of collusion
between them and MCGM is denied. It is contended that the
notional connection between two structures was sanctioned by
MCGM in the beginning. That as per the agreement dated
02.12.1989, the developer is entitled to develop the same as
per his sweet will and the Plaintiff-Society has no right on the
remaining FSI.
STAND OF THE MUNICIPAL CORPORATION
12. MCGM has filed written statement contending inter-alia that
plans submitted for construction by the Appellants were granted and
building of ground part plus stilt part plus three upper floors with
notional connection with the Plaintiff-Society building was approved in
May 1994. Thereafter, amended plan was approved in January 1995.
After issuance of notice under Section 354A of the BMC Act, a proposal
for regularization was given, which was approved. After complaints of
the Plaintiff-Society, meetings were held and an order has been passed
on 07.11.2006, as per order of Court dated 09.08.2006 passed in N.M.
No.2185 of 1996. That MCGM issued Occupation Certificate upto third
floor.
6 CAF 1324-18 group Order C3.doc
DECREE BY TRIAL COURT
13. The Trial Court after considering rival contentions and on
appreciation of evidence has decreed the suit only partly, directing the
MCGM to take action against the constructed building which is beyond
sanctioned plan and which is more than permitted FSI worth 6550 sq.
ft. constructed by Defendant Nos.4 to 7 (including the Appellants) on
suit property. Direction is issued to MCGM to implement its order dated
07.11.2006. The Appellants are directed to remove or demolish the
notional connection and to shift BSES sub-station to original position
and to remove/demolish unauthorized construction beyond 6550 sq. ft.
Direction is issued that if the Appellants fail to demolish as directed,
MCGM to demolish the same. The Appellants are permanently
restrained from obstructing members of the Plaintiff-Society from
enjoying recreational ground at site. The Court has also directed inquiry
as to how plans were sanctioned without any benefit to MCGM in the
redevelopment/new construction even when MCGM was one of the
occupants of old premises having area of 716 sq. ft.
CONSIDERATION BY THIS COURT
14. Mr. Vakil, learned Advocate appearing for the Plaintiff-Society,
relying upon the averments made in IA/7880/2025 contended that the
Plaintiff - Society has been embroiled in the present litigation for last
about 30 years and is currently undergoing re-development. Relying on
the latest Concession Report dated 28/11/2024 issued by MCGM, it is
contented that the Plaintiff - Society is forced to keep the FSI
consumption in abeyance on account of present litigation. It is pointed
out that the Plaintiff-Society had received commencement certificate up
to 8th floor, copy of which is produced on record. He submitted that
since the Appellants (Mr. and Mrs. Gupta) have consumed FSI over and
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above permitted to them, it is directly affecting the Plaintiff-Society in
its re-development. It is submitted that if the order of status quo is not
vacated, the Plaintiff - Society will suffer irreparable loss, harm and
prejudice in as much as the re-development shall remain stalled.
15. Perusal of the record shows that IA/7662/2024 filed by the
Appellants has been pending since April 2024. Applicants have
remained absent in March 2025, sought adjournment in April 2025 and
when the Society being Applicant in IA/7880/2025 pressed for its
prayer for vacating the status quo, pending Applications were taken
together. On 13/08/2025, Appellants again sought adjournment.
However, Appellant No. 2 assured the Court that on the next date all
the Applications which are on board will be proceeded on merits either
through an Advocate or by himself as party in-person and no
adjournment will be sought. Records further indicates that thereafter
affidavit-in-reply is filed by the Appellant No. 1 through Appellant No. 2
on 20/08/2025. On 22/08/2025, Mr. Ashok Gupta, party in-person
tendered notarized affidavit sworn by Appellant No. 1 in IA/7880/2025
and since the pagination was incorrect, the matter was kept back and in
the afternoon session it was found that he had also filed another
affidavit-in-reply, which was sent by the Registry. For the reasons best
known to Appellants, two affidavits-in-reply are filed, one in the
Registry and another is tendered in the Court, contending same things.
16. Mr. Ashok Gupta appeared in person and submitted on behalf
of the Appellants. In view of peculiar contentions raised by him through
his affdavit in reply, I am considering the same one by one below.
17. Appellant No. 1 - Sushma Gupta has filed affidavit-in-reply
6 CAF 1324-18 group Order C3.doc
opposing IA/7880/2025 in which it is contended that Appellants' earlier
IA/7662/2024 is pending and without waiting for hearing and
adjudication of the said Interim Application, the Society has filed
IA/7880/2025 seeking modification of the status quo order, which is
unjustified and causing serious prejudice to the Appellants. Appellant
No. 2 -Ashok Gupta (Party in Person) has made submissions in support
of the Appellant's case.
18. In the affidavit-in-reply, it is contended that the decree is
passed against the dead Defendant Nos. 1 and 2 i.e. members of the
Podar family, who were owners of the suit property and who had
transferred it in favour of the Developer-Mr. Jalan. It is contended that
the Defendant Nos. 2 and 3 (members of the Podar Family & Mr. Jalan)
had declared that the new conveyance is made by them in the year
2015 in favour of 'Ramanuj' Society to bring an end to long pending
dispute. Perusal of the so called declaration annexed by the Appellants
at 'Exh-B' indicates that it was an Application for adjournment filed by
the Defendant Nos. 2 and 3 before the Metropolitan Magistrate in a
criminal case, stating that conveyance is being finalized by legal experts
and it will be executed in the next few days. This adjournment
Application can hardly be called as 'declaration' of new conveyance
made as claimed by Mr. Gupta. What was that criminal case, what
happened to it, nothing is informed.
19. The affidavit-in-reply goes on to contend that developer on the
suit property appointed by the Plaintiff-Society has filed affidavit of plot
area, though he is not owner of suit property. It is stated that owner and
the first Developer-Mr. Jalan had played fraud for which criminal
complaint was filed and therefore they are the necessary party in the
6 CAF 1324-18 group Order C3.doc
Appeal and their legal heirs must be impleaded. It is material to note
that Appeal is filed by the Appellants themselves and they can take
appropriate steps for bringing those legal heirs, if they want. It is also
material to note that Appellants have not made the Plaintiff-Society's
developer party to this appeal and it is their choice. Making allegations
against a non-party can have no material bearing.
20. An omnibus statement is then made in the affidavit that the
Respondents have played fraud on judiciary by misrepresenting and
securing order of modification of the status quo. Certain earlier
directions and communication of 2002 and 2005 are referred. In this
respect, it is material to note that after hearing both sides, this Court
has modified the order of the status quo on 21.12.2022 by a detailed
order and the said order is not varied or set aside. This is nothing but an
attempt to rake up contentions as to why the first order of status quo
should not have been modified by this Court. This Court cannot sit in
appeal over its own earlier order.
21. One letter purportedly issued by the Plaintiff-Society on
08/11/2022 is relied upon. Perusal of the said letter indicates that it is
issued on behalf of the Plaintiff-Society about membership of Urmila
Shivkumar Gupta, who is Appellant. Membership issue is not involved
in present appeal.
22. Then the order passed in the Contempt Petition dated
16/02/2024 is relied upon. Perusal of the said order shows that after
considering the orders about which contempt was alleged by the
Appellants, their Contempt Petition has been dismissed by this Court.
23. In short, affidavit-in-reply filed by the Appellant No. 1 and
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arguments advanced by the Appellant No. 2 party in-person are far from
being relevant to the issue at hand, and orders which have attained
finality are being complained about, over and over again. It is their
choice that they are arguing their case through party-in-person
(Appellant No. 2).
24. Perusal of the record and orders passed by this Court earlier,
shows following conduct of the Appellants :
i) On 24.10.2018, Appellant No.2 - Ashok
Gupta appeared in-person and submitted that he has
applied to Committee of the Registry for permission
to appear in person.
ii) On 21.02.2019, one Advocate Raman
appeared and undertook to file Vakalatnama on
behalf of the both the Appellants.
iii) On 04.06.2019, after hearing the
Advocate for the parties, this Court expressed that
attempt will be made to dispose of the appeal finally
at admission stage. On this day, some different
advocate Ms. Sovani appeared for Appellants.
iv) Appellant No.2 was found fit by the
Committee to appear as party in-person which is
recorded in order dated 26.06.2019.
v) On 27.01.2020, one Advocate D'Souza
sought time to file Vakalatnama on behalf of the
Appellants.
6 CAF 1324-18 group Order C3.doc
vi) On 02.03.2020, one Advocate Kazi
appeared who stated that YMK Legal will be filing
Vakalatnama for the Appellants.
vii) On 26.07.2022, this Court found that
Vakalatnama was filed only on behalf of Appellant
No.1, and Appellant No.2 continued as party in-
person and this Court recorded that individual
Appellants cannot be heard separately as there may
be conflict of interest. Faced with this situation,
Advocate for Appellant No.1 stated that Vakalatnama
will be filed for Appellant No.2 also.
(viii) In the past also, the Society was
required to move this Court by IA/30446/2022 for
modification of the status quo order in view of the
emergency situation for demolition of the notional
connection joining Plaintiff-Society and the building
constructed by the Appellants. It is seen that after
hearing both sides on 21/12/2022, this Court passed
an order allowing the MCGM to demolish the
notional connection. It was clarified that the order
is without prejudice to the rights and contention of
the parties.
ix) Appellants had filed IA/329/2023 for
recalling above order dated 21/12/2022 which was
eventually rejected as misconceived on 31.01.2023
(x) One more Application being
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IA/1620/2023 was filed by the Applicants seeking
directions to prevent alleged encroachment of land
beneath and appurtenant to notional connection,
which was also disposed of by this Court on
22/02/2023, finding that the application was beyond
the scope of this appeal.
(xi) In the meantime, the Appellants
obtained order of deemed conveyance from the
concerned competent Court on 02.08.2021 without
joining the Plaintiff-Society as party. This order of the
deemed conveyance has been stayed by this Court on
13.04.2023 in WP/7981/2022 filed by the Plaintiff-
Society.
(xii) Appellants then filed Contempt Petition
No. 110 of 2024 alleging contempt against the
Plaintiff - Society for action pursuant to the order
dated 21/12/2022. This Contempt Petition has been
dismissed on 16/02/2024, after hearing the
Appellants.
(xiii) One more Application was filed by the
Appellants being IA(L)/15096/2025 seeking
declaration that present impugned judgment and
decree in the very same subject suit (from which the
present Appeal is arising) as null and void ab initio
and seeking remand of the matter for fresh decision
on merits. The said Application has been dismissed
on 04/07/2025 as being misconceived.
6 CAF 1324-18 group Order C3.doc
25. It is therefore clear that the Appellants have filed multiple
applications to add to the burden of proceedings, for same reliefs again
and again, after securing an ex-parte status quo order to prolong the
hearing of main interim Application for stay one way or the other.
Considering the conduct of the Appellants as highlighted above, it is
seen that the Appellants have tried every trick in the book, to prolong
the hearing on interim relief, thereby trying to perpetuate the ex-party
ad-interim status quo secured way back in 2018. Aforesaid various
Applications filed by the Appellants and orders passed therein are clear
indication of the fact that the Appellants simply want to postpone the
hearing of main Interim Application in which they have secured ex-
party ad-interim status quo.
26. It is also clear from the submissions of the Appellant No. 2-
party in-person that Appellants wish to continue blanket status quo
order which was obtained by way of ex-party ad-interim relief. Mr.
Ashok Gupta has gone to the extent of pointing out from the order of
ex-party ad-interim status quo dated 22/03/2018 that in para no. 4 of
the said order, this Court has stated that
"4. I have perused the impugned judgment as well as
the grounds raised in the appeal memo and in my
considered view, it is necessary to maintain status quo."
27. According to Mr. Gupta even though this order is ex-party
order passed without hearing the Respondent-Society, once this Court
says that the impugned judgment is perused and grounds in the Appeal
are perused and it is necessary to maintain status quo, it means that no
further order can be passed after hearing the contesting Respondents.
This is preposterous. If a party-in-person insists that the Court should
6 CAF 1324-18 group Order C3.doc
throw all settled principles of procedure to wind, then the Court has to
deal with it sternly, and let the necessary consequences follow.
28. At the cost of repetition, it must be noted that it is Appellants'
choice that they are arguing their case through party-in-person
(Appellant No. 2). Court cannot keep adjourning interim applications.
29. The whole case of the Appellants is based on the
agreement/document in their favour dated 02.12.1989. Their rights
flow from this document. I have perused the agreement dated
02.12.1989, by which the Appellants have received development rights
in 607.76 sq. mtrs. i.e. remaining area after constructing Plaintiff-
Society. There is clear recital that the Appellants are aware of the
available FSI for development of the remaining property and which is
only to the extent of 6550 sq. ft. and no additional FSI is available to
them. The said document also clearly spells out that the Appellants shall
not be entitled to disturb the possession of various flats already
purchased in Respondent - Society (Minal CHS). It is also specifically
agreed that the purchasers of flat/shop in construction to be erected by
the Appellants shall become members of Minal CHS and conveyance
will also be executed in favour of Minal CHS. The Appellants have
purchased the development rights on 'as is where is' basis. The
Appellants have expressly agreed that they shall be entitled to develop
the remaining property only to the extent of 6550 sq. ft. and nothing
more. The Appellants have also agreed expressly that they are aware
that it is not possible to sub-divide the entire property into three sub-
plots namely 'Madhav Kunj' portion, Plaintiff's portion and remaining
property. When the Appellants have purchased development rights with
such limitation and fetters, in my view, they cannot seek substantial
6 CAF 1324-18 group Order C3.doc
relief against the Plaintiff-Society and its members, in the form of an
injunction, not to construct on the land below the notional connection
of the land and appurtenant thereto. If such substantive prayers are
entertained, it will amount to entertaining independent proceedings
directly at appellate stage, which is not permissible in law.
30. The Appellants have not filed the present suit and they are
only defending the prayers made by the Plaintiff-Society. Admittedly,
substantive suit filed by the Appellants (Suit No. 9134/2000 - old HC
Suit No. 4525/2000), challenging the title of the Plaintiff-Society to the
entire land, was dismissed by City Civil Court, Dindoshi on 19.10.2013.
The Appellants' Notice of Motion No. 4645/2015 for its restoration has
also been dismissed on 26.11.2018. Its copy is produced on record with
affidavit of the Respondent Society to IA/4513/2023. As such, title of
the Plaintiff-Society is undisputed.
31. It is also important to note that, as on today, out of three
purchasers of the development rights under document dated
02.12.1989, only Sushma Gupta is contesting and the other two persons
Lata Gupta and Urmila Gupta have not even filed appeal challenging
the impugned judgment and decree. Thus Mr. Ashok Gupta - Appellant
No. 2 is not even purchaser under the document dated 02.12.1989.
32. So far as the Appellants' prayer of appointment of Court
Receiver is concerned, it is settled position of law that appointment of
Court Receiver is within the judicious discretion of the Court based on
facts and circumstances of each case. The impugned decree is only
about removal / demolition of the construction made by the Appellants
beyond permissible 6550 sq.ft. worth of FSI. There are no rival claims
6 CAF 1324-18 group Order C3.doc
on extra constructed portion. Plaintiff-Society does not want to occupy
extra construction made by the Appellants. There are rival claims on FSI
use beyond permitted limit under the Appellants' document dated
02.12.1989. Court receiver cannot take FSI in custody. For this reason,
coupled with all the aforesaid facts and circumstances, in my view this
is not a fit case to exercise discretion for appointment of Court Receiver.
33. So far as the prayer of reinstatement of solid waste drainage
line is concerned, the prayer is opposed by the Respondent-Society by
contending in their affidavit-in-reply that the Respondent-Society has
not in any manner disturbed the drainage line of the Appellant and one
of the member of the Gupta family (Respondent No. 11) made
application in respect of drainage line. Copy of such Application and
reply of MCGM are produced at page nos. 369 and 370 of the reply.
Said copies indicate that request was not made on behalf of the
Respondent - Society. In that view of the matter, there is nothing to
indicate that the drainage line is damaged by the Respondent No. 1. In
any case, as noted earlier, this prayer is also in the nature of making a
substantive claim, which cannot be entertained first time at Appellate
stage without proper evidence to verify rival claims. In that view of the
matter, the said prayer also deserves to be rejected.
34. Considering all the aforesaid facts and circumstances, in my
view, there is no enough strong prima facie case to grant blanket status
quo. There is no enough strong prima facie case to delay re-
development of Respondent-Society for 31 members and such other
persons from Appellants' building who wish to join the Respondent-
Society, if any. Overall picture emerging in the opinion of this Court is
that Appellants (2 persons) are stalling the development of all others
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involved by filing multiple applications and keeping the real
consideration from reaching its logical end.
35. In view of all the above considerations, at least at this stage,
the Trial Court seems to have considered all the aspects of the matter in
proper perspective.
36. Therefore, all the above interim applications are disposed of
by passing following order :
(A) IA No. 4513 of 2023 and IA No. 7662 of 2024 are
rejected.
(B) Civil Application No. 1324 of 2018 is rejected and IA
No. 7880/2025 is allowed. Ex-parte status quo order dated
22.03.2018 is vacated.
(C) It is clarified that further development on the suit
plot at the instance of Respondent No. 1 Society, will be
subject to final outcome of appeal.
(M. M. SATHAYE, J.)
