Smt. Rachel Cherian And Others v. Shri. Lawrence Rodrigues And Others

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION CIVIL APPLICATION NO.1722 OF 2014 IN SECOND APPEAL NO.741 OF 2014 Smt. Rachel Cherian And Others ...

Applicants

Versus

Lawrence Rodrigues And Others ...

Respondents .....

None for the Applicants.

Mr. Lawrence Rodrigues, Respondent No.1 in person. .....

CORAM : S.C. GUPTE, J.

DATE : 3 MARCH 2017 P.C. :

.

This civil application seeks stay of the operation of the impugned judgment and decree passed by the First Appellate Court. By the impugned judgment and order, the First Appellate Court declared the construction carried out on the common terrace of the building designated as JN-4/7 as unauthorised and illegal and that Respondent No.1/Plaintiff was entitled to take fresh air, sunlight by way of easementary right on the common terrace of the building, restraining the Appellants (original Defendants) from permanently erecting or installing any shed on the common terrace or covering the common terrace of the building JN4-7. It appears that there was an ad-interim order obtained by the Applicants/Appellants on 9 March 2015 in terms of prayer clause (a) of the

2/3 civil application. To that extent, there was stay to the operation of the impugned judgment and decree dated 7 April 2014. This ad-interim order, however, was vacated by this Court by its order dated 31 July 2015. The order of 31 July 2015 notes the earlier order passed by this Court on 24 July 2015, by which this Court had recorded that if the Applicants/Appellants failed to appear on the next date, this Court would pass an appropriate order after hearing Respondent No.1, who was present before the Court in person. This Court noted on 31 July 2015 that the Appellants/Appellants did not appear in the morning session when the matter was called out and in the afternoon session, sought time to file a reply. This Court, in the premises, refused to continue the interim order passed earlier and vacated the same. This situation has continued since then. Today when the matter is called out, none appears for the Applicants/Appellants.

Respondent No.1, who appears in person, submits that taking advantage of the pendency of the present second appeal and civil application, the Applicants/Appellants had gone ahead and constructed a shed on the terrace of the suit building. There are photographs annexed to the Affidavit in reply filed by Respondent No.1, which show the construction. The photographs, however, show that the construction reflected therein was complete as of 26 April 2015. The photographs show the status of the site as of 21 March 2015 and 26 April 2015. During this period, it is admitted position that the ad-interim stay granted by this Court was operating.

3/3 On these facts, no order of demolition can be passed at this stage on the basis of the affidavit in reply filed by Respondent No.1. Respondent No.1, however, will be at liberty to apply for suitable relief in this behalf on a separate application, if so advised, or at the hearing of the second appeal. Respondent No.1 submits that in the civil application, the Applicants/Appellants had also sought permission to construct a weather shed on the terrace but that this permission was not granted and yet the Applicants/Appellants proceeded to construct the weather shed. As I have noted above, this may be the subject matter of a separate application or for consideration at the hearing of the Second Appeal. It is, however, made clear that as of today, the impugned judgment and order passed by the First Appellate Court on 7 April 2014 operates to the fullest extent and binds the Applicants/Appellants.

The civil application, in the premises, is dismissed. (S.C. GUPTE, J.)