Final Order 1

Order Details: Notice of Motion
Pdf Text: MHCC010006532020 Presented on 16.01.2020
Registered on 16.01.2020
Decided on 06.03.2026
Duration 06Y 01M 21D
IN THE BOMBAY CITY CIVIL COURT, AT BOMBAY
NOTICE OF MOTION NO.270 OF 2020
IN
SUIT NO.17 OF 2020
Diamond Hill Co-operative Hsg. Soc. Ltd. …. Plaintiffs
Versus
M/s. K. M. Realty …. Defendants
CORAM : HIS HONOUR JUDGE N.V. JIWANE
C.R.NO..
: 15
DATE : 06.03.2026
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Adv. Sanjit Shukla a/w Adv. Gauraj Shah a/w Adv. Ashish Mishra a/w
Adv. Vishnudatta Mishra a/w Adv. Tushar Ambekar for plaintiff.
Adv. Parshurampuria a/w Adv. M. P. Vora for defendants.
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ORAL ORDER
(DICTATED IN OPEN COURT)
1. The plaintiff has taken out this Notice of Motion for
directing the defendants to demolish the entire structure and remove
the structure which is in contravention and beyond the sanctioned plan
of 26.07.2004 before continuing any floor or casting the RCC Slab on
ground floor. It is the contention of plaintiff that it has filed the suit for
permanent injunction restraining the defendants from constructing any
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3rd building in the property bearing CTS No.13/13 admeasuring
3957.30 sq.mts. and for other reliefs. It is the contention of plaintiff that
during the pendency of the suit, defendants were given liberty by this
Court to carry out the work of construction as per the sanctioned plan
of 26.07.2004, but the defendants in violation of the said order, trying
to construct the new building beyond the sanction plan dtd.26.07.2004
and put up a centering work on the plinth which is more in length of 19
meters as per the plan and blocking the ventilation of already
constructed building B-Wing on western side. It is further contended by
the plaintiff that defendants have consumed 3.7 mtrs abutting the
internal road on the eastern side. It is the contention of plaintiffs that
defendants with an ulterior motive to harass the residents of wing ‘A’
and ‘B’ of plaintiff’s society illegally constructing 3rd building i;e wing
‘C’. The Court has granted the permission to defendants only to
construct the new building as per the sanction plan dtd.26.07.2004, but
the defendants in total violation of the said order, trying to construct the
new building which is not as per the sanction plan of 26.07.2004.
Hence, it is submitted that the defendants be directed to demolish the
entire structure which is in contravention of sanctioned plan
dtd.26.07.2004.
2. The said Notice of Motion is strongly opposed by the
defendants vide their reply at Exh.10. The defendants have come up
with the case that by the present notice of motion, plaintiff wants
mandatory injunction directing the defendants to demolish the
construction without any evidence. The plinth which was constructed
much prior to the filing of the suit and the said construction was asked
to be demolished by the plaintiff without proving on record as to how
the said construction is illegal one. The defendants denied any abuse of
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order passed by this Court and also denied any work carried out beyond
approved plans. It is further contended by the defendants that sanction
plan dtd.26.07.2004 is part of the present approved plans which is duly
sanctioned by the Competent Authority. The defendants further
contended that the photographs relied on by the plaintiff are in the
nature of cleaning and mobilization of the material at the 1st floor of the
proposed construction and same is not any construction activity. The
defendants contended that the Notice of Motion be dismissed.
3. The plaintiffs filed a re-joinder at Exh.10A and reiterated its
stand. It is the contention of the plaintiff that the defendants
constructed the plinth beyond the approved plan of 2004 and the same
was without the permission and consent of the plaintiff’s society and
therefore, the proposed construction is patently illegal. It further
contended that the defendants tried to construct new building as per
the plan of 2019 and not as per the plan of 2004 and therefore the
defendants need to be restrained from constructing any building in
disregard of the approved plan of 2004.
4. Heard Ld. Advocate for plaintiffs and defendants. During
the argument, Ld. Advocate for plaintiffs argued that the plaintiffs have
filed the present suit u/Sec.7 and 7A of MOFA Act. During the pendency
of the suit by order dtd.08.01.2020, ad-interim relief was granted in
favour of the plaintiff. Said ad-interim order dtd.08.01.2020 was
confirmed by the order dtd.22.02.2003 in Notice of Motion
No.4973/2019. The said order was challenged by the defendants before
the Hon’ble High Court in Appeal from Order No.4181/2023. He
submitted that the Hon’ble High Court was pleased to dismiss the
appeal filed by the defendants by order dtd.08.01.2024. He further
submitted that the Hon’ble High Court has specifically considered the
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stand taken by the defendants and was pleased to overrule the said
stand. The order of the Hon’ble High Court in clear words directs the
defendants to follow the approved plan of 2004 only while making any
proposed new building. He further submitted that though the
defendants had challenged the order passed by the Hon’ble High Court
before the Hon’ble Supreme Court but the Hon’ble Supreme Court had
also pleased to direct the defendants to proceed with the construction
as per the approved plan but the FSI potential under DCR, 1991 only
and the fungible area under the said DCR shall not be utilized. Hence,
the defendants cannot proceed with the construction except according
to the approved plan of 2004.
5. On the other hand, the Ld. Advocate for defendants argued
that the ad-interim order dtd.08.01.2020 and order dtd.08.01.2024
passed by the Hon’ble High Court have lost their existence in view of
the order passed by the Hon’ble Supreme Court in Civil Appeal
No.11414/2025 arising out of SLP (CC) No.3420/2025 dtd.01.08.2025.
He submits that both the earlier orders were merged in the order passed
by the Hon’ble Supreme Court and now only the order passed by the
Hon’ble Supreme Court would hold the ground in view of the principal
of merger. He further submitted that the order of the Hon’ble Supreme
Court is crystal clear regarding the proposed construction and
consequences in future. He submitted that the notice of motion was
taken out by the plaintiff only to pressurize the defendants and harass
them. Defendants relied on the following rulings in support of their
contention : -
(i) Omprakash Verma and Ors. Vs. State of A.P. and Ors., - 2010 AIR
SCW 7196 : -
It is clear that once leave was granted by this Court in the special
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leave petitions filed against the Division Bench of the High Court
in the earlier round of litigation and the consequent civil appeals
arising therefrom filed by the State Government is allowed by this
Court, the judgment of the Division bench lost its identity and
merged with the judgment of this Court. The said judgment of the
Division Bench of the High Court, therefore, cannot be relied
upon for any purpose whatsoever.
(ii) Kunhayammed and Ors. Vs. State of Kerala and Anr. (2000) 6
Supreme Court Cases 359 :-
41. Once a special leave petition has been granted, the doors of
the exercise of appellate jurisdiction of this Court have been let
open. The order impugned before the Supreme Court becomes an
order appealed against. Any order passed thereafter would be an
appellate order and would attract the applicability of doctrine of
merger. It would not make a difference whether the order is one
of reversal or of modification or of dismissal affirming the order
appealed against. It would also not make any difference if the
order is a speaking or non-speaking one. Whenever this Court has
felt inclined to apply its mind to the merits of the order put in
issue before though it may be inclined to affirm the same, it is
customary with this Court to grant leave to appeal and thereafter
dismiss the appeal itself (and not merely the petition for special
leave) though at times the orders granting leave to appeal and
dismissing the appeal are contained in the same order at times
the orders are quite brief. Nevertheless, the order shows the
exercise of appellate jurisdiction and therein the merits of the
order impugned having been subjected to judicial scrutiny of this
Court.
44. To sum up, our conclusions are :
(i) Where an appeal or revision is provided against an order
passed by a court, tribunal or any other authority before
superior forum and such superior forum modifies, reverses
or affirms the decision put in issue before it, the decision by
the subordinate forum merges in the decision by the
superior forum and it is the latter which subsists, remains
operative and is capable of enforcement in the eye of law.
(ii) The jurisdiction conferred by Article 136 of the Constitution
is divisible into two stages. First stage is upto the disposal
of prayer for special leave to file an appeal. The second
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stage commences if and when the leave to appeal is
granted and special leave petition is converted into an
appeal.
(iii) Doctrine of merger is not a doctrine of universal or
unlimited application. It will depend on the nature of
jurisdiction exercised by the superior forum and the
content or subject-matter of challenge laid or capable of
being laid shall be determinative of the applicability of
merger. The superior jurisdiction should be capable of
reversing, modifying or affirming the order put in issue
before it. Under Article 136 of the Constitution the
Supreme Court may reverse, modify or affirm the
judgment -decree or order appealed againstwhile exercising
its appellate jurisdiction and not while exercising the
discretionary jurisdiction disposing of petition for special
leave to appeal. The doctrine of merger can therefore
be applied to the former and not to the latter.
(iv) An order refusing special leave to appeal may be a non-
speaking order or a speaking one. In either case it does not
attract the doctrine of merger. An order refusing special
leave to appeal does not stand substituted in place of the
order under challenge. All that it means is that the Court
was not inclined to exercise its discretion so as to allow the
appeal being filed.
(v) If the order refusing leave to appeal is a speaking order, i.e.
gives reasons for refusing the grant of leave, then the
order has two implications. Firstly, the statement of law
contained in the order is a declaration of law by the
Supreme Court within the meaning of Article 141 of the
Constitution. Secondly, other than the declaration of law,
whatever is stated in the order are the findings recorded by
the Supreme Court which would bind the parties thereto
and also the court, tribunal or authority in any proceedings
subsequent thereto by way of judicial discipline, the
Supreme Court being the apex court of the country. But,this
does not amount to saying that the order of the court,
tribunal or authority below has stood merged in the order
of the Supreme Court rejecting special leave petition or that
the order of the Supreme Court is the only order binding as
res judicata in subsequent proceedings between the parties.
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(vi) Once leave to appeal has been granted and appellate
jurisdiction of Supreme Court has been invoked the order
passed in appeal would attract the doctrine of merger; the
order may be of reversal, modification or merely
affirmation.
(vii) On an appeal having been preferred or a petition seeking
leave to appeal having been converted into an appeal
before Supreme Court the jurisdiction of High Court to
entertain a review petition is lost thereafter as provided by
sub-rule (1) of Rule (1) of Order 47 of the C.P.C.
6. I have given thoughtful consideration to the submissions
advanced by both the parties. It is the matter of record that interim
order was passed in Notice of Motion No.4973/2019 dtd.08.01.2020
and the said interim order was confirmed vide order dtd.22.2.2023. The
defendants were restrained from carrying on any construction as prayed
in prayer clause 6 of the said notice of motion which is in respect of
proposed new building and the defendants were restrained from
making any construction of wing ‘C’ building. The said order was
challenged by the defendants before the Hon’ble High Court and
Hon’ble High Court was also pleased to dismiss the appeal filed by the
defendant vide Order dtd.08.01.2024 in Appeal from Order
No.418/2023. The defendants took said order passed by Hon’ble High
Court before the Hon’ble Supreme Court in Civil Appeal
No.11414/2025. The Hon’ble Supreme Court while disposing the said
appeal has specifically observed in para No.3 to 7 as under : -
3. Pending the suit and order of injunction granted in favour of the
respondent-plaintiff by the Trial Court, the High Court has
permitted the appellant-developer to either await final decision
of the suit by stopping the construction where it stands today or
to demolish the same to bring it at par with the plinth/footprint
of the area indicated in 2004 layout plan and then to construct
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the third building upto ground + 7 floor. Though arguments
have been made by both the parties on factual aspects and on
law, we do not wish to go into the same at this stage as we are
dealing with an Interlocutory Application.
“
4. Suffice it to take note of the submissions made by the learned
Senior Counsel before the High Court and also before us that
the balance FSI potential under the Development Control
Regulation, 1991 (for short, ‘DCR, 1991’) alone would be
utilized and the fungible area admissible as per 1991 DCR,
would not be utilized.
5. In such view of the matter, granting a temporary injunction
would not be to the benefit of both the sides as for considering
the same, what is to be primarily looked at is an irreparable loss
to the plaintiff (s), a prima facie case established by the plaintiff
or balance of convenience lies in the plaintiff’s favour.
6. Accordingly, we permit the appellant to put up construction as
per the approved plan, with respect to FSI Potential under DCR,
1991, while making it clear that the fungible area admissible
under the said DCR, shall not be utilized. The said construction
is subject to the decree to be passed in the suit and therefore, no
equities can be claimed.
7. In order to avoid third party rights, we hold that the appellant
shall not alienate the construction to be made, in favour of the
third parties, pending the outcome of the suit.”
7. Thus, from the order passed by the Hon’ble Supreme Court,
defendants were given the liberty to proceed with the construction as
per the approved plan. Therefore, it cannot be said that the defendants
proceeded with the alleged construction in violation of order passed in
Notice of Motion No.4973/2019 dtd.08.01.2020. It is noteworthy to
mention here that the interim relief granted in Notice of Motion
No.4973/2019 dtd.08.01.2020 and order passed by the Hon’ble High
Court in Appeal from Order No.418/2023 dtd.08.01.2024 merged in
the order passed by Hon’ble Supreme Court in Civil Appeal
No.11414/2025 dtd.01.08.2025. Therefore, the contention of the
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plaintiff that defendants breached the order passed in Notice of Motion
No.4973/2019 and therefore, defendant needs to be directed to
demolish the entire structure which is contravention, is found to be
misconceived one. The Hon’ble Supreme Court in clear and unequivocal
words had granted the liberty to defendant to continue the construction
as per the approved plan with respect that FSI potential under BCR
1991. It was further made clear in the said order that the fungible area
admissible in the said BCR shall not be utilized by the defendants. It is
further made clear in the said order that any construction of the
defendants will be subject to decree to be passed in the suit. The
Hon’ble Supreme Court further directs the defendants shall not alienate
the construction to be made in favour of 3rd party till decision of the
suit. Thus, by the order of Hon’ble Supreme Court the defendants can
proceed with the construction of the new building as per approved plan
and there is no order against the defendants for not to carry on any
construction or to demolish any construction made on the suit property.
It is noteworthy to mention here that in the order passed by the Hon’ble
Supreme Court defendant were directed to proceed with the
construction as per approved plan only and there is no direction to
follow the approved plan of 2004 only while making any new
construction. Therefore, in view of the specific order passed by the
Hon’ble Supreme Court, the present Notice of Motion does not survive
and therefore, the same needs to be rejected. Hence, I proceed to pass
following order:-
ORDER
1. Notice of Motion No.270 of 2020 in Suit No.17 of 2020 is
dismissed.
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2. Notice of Motion No.270 of 2020 is disposed of.
Date : 06.03.2026
Place : Mumbai.
(N.V. JIWANE),
Judge,
City Civil & Sessions Court,
Greater Mumbai.
Dictated on : 04.03.2026 and 06.03.2026
Transcribed on : 04.03.2026 and 06.03.2026
Draft given on : 06.03.2026
Checked & Signed on : 07.03.2026
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
Upload Date Upload Time Name of Stenographer
Mrs. K. S. Bhosale07.03.2026 5.35 p.m.
Name of the Judge (With C.R. No.) HHJ Shri N.V. JIWANE (C.R.No. 62)
Date of Pronouncement of
JUDGMENT /ORDER
06.03.2026
JUDGMENT /ORDER signed by
P.O. on
07.03.2026
JUDGMENT /ORDER uploaded on 07.03.2026
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