GAJANAN SHANKAR BHANAT Vs. VASANT DHONDU BHANAT

JUDGEMENT

(1.) By this appeal, the Appellant challenges the order dated 23.07.96 passed by City Civil Court in S.C. Suit No.2149 of 1994. Though in the title of the order only one notice of motion viz. Notice of Motion No.1915 of 1992 is mentioned, it is clear from reading of the order that three notices of motion have been decided by that order viz. Notice of Motion No.1915 of 1992, Notice of Motion No.1934 of 1992 and Notice of Motion No.3662 of 1992. So far as Notice of Motion No.1915 of 92 is concerned, there were two prayers made in that motion. By prayer clause (a) the Plaintiff claimed a mandatory order directing the Defendant No.1 to demolish and remove such structure as he may have constructed on the suit property. It appears that the court made an ad-interim order on 2.4.1992 in Notice of Motion No.1934 of 1992 that Plaintiff sought an order from the Court for committal of Defendant No.1 to civil prison for committing contempt of the Court. In Notice of Motion No.3662 of 92 apart from praying for order for committing Defendant no.1 to civil prison, the Plaintiff also prayed for a mandatory order for pulling down the structure that was constructed in breach of the ad-interim order. Perusal of the order impugned shows that so far as Notice of Motion 1915 of 92 is concerned it has been made absolute in terms of prayer clause (a) and the Court has also while deciding Notices of Motion No.1934 of 92 and 3662 of 92 has passed orders for demolition of the structure which was erected in breach of the ad-interim order.

(2.) IT is obvious that as the order impugned is a composite order passed on Motions, this appeal is tenable only against that part of the order which disposes of Notice of Motion No.1915 of 1992. As no appeal lies against the order passed in applications filed under Order XXXIX Rule 2A and has the Notices of Motion 1934 of 92 and 3662 of 92 were applications filed under Rule 2A Order XXXIX, this appeal is not tenable against that part of the order which disposes of above referred two Motions. Therefore, I am considering this appeal only in relation to that part of order impugned which disposes of Notice of Motion No.1915 of 92 leaving the Appellant to seek his remedy against the order of the trial Court in the other two Motions.

(3.) So far as order of impugned in Notice of Motion 1915 of 92 is concerned, the learned counsel for the appellant urged before me that though the trial Court has granted the motion in terms of prayer clause (a), there are no reasons given in the order as to why that motion has been granted. The learned counsel submitted that entire discussion in the order concerns the construction which Appellant is alleged to have carried on after the ad-interim order was made. There is no discussion in the order about the construction which the appellant was carrying on till ad-interim order was made on 2.4.92 or till the civil suit was filed on 30th March, 1992. In the submission of the learned counsel for granting prayer clause (a) of Notice of Motion No.1915 it was necessary in the Court to consider as to what was the construction carried on by the appellant till 30th March, 92 and as to whether he was authorised to carry on that construction and as to whether the Respondent-Plaintiff was entitled to an order from the court for demolition of that construction. The learned counsel appearing for the Respondent-Plaintiff could not point to me any reasons from the order impugned given by the trial court for making an order for demolition of the structure which was erected before the date of the suit after having gone through the order impugned and other relevant record and after having heard the learned counsel for both the sides, I find that though by the order impugned Notice of Motion No.1915 of 92 has been granted in terms of prayer clause (a) of that motion, there are no reasons given by the court as to why the construction that was carried on by the Appellant till date of the suit is unauthorised or illegal and is liable to be pulled down. Therefore, in my opinion the order of the Court passed in Notice of Motion No.1915 of 92 is liable to be set aside being an order without assigning any reason and the Notice of Motion No.1915 of 92 in Civil Suit No.2149 of 92 is to be remitted back to the trial Court for denovo consideration and decision. In the result, appeal succeeds. The order dated 23.7.96 passed by City Civil Court at Bombay in Notice of Motion No.1915 of 92 in Special Civil Suit No.2149 of 92 is set aside and the Notice of Motion No.1915 of 92 is remitted back to the trial Court for denovo consideration and decision in accordance with law. So far as the order passed by the trial Court in Notice of Motion No.1934 of 92 and 3662 of 92 is concerned, the appellant is at liberty to adopt appropriate remedies against that order. Considering that the matter has remained pending before this Court for a long time, the trial court is directed to hear and dispose of the Notice of Motion No.1915 of 92 as expeditiously as possible.