Bombay High Court
SHRI. VINAYAK NIMHANversusTHE MUNICIPAL CORPORATION OF CITY OF PUNE AND ORS.
- Decided
- Disposal
- Disposed Off
Holding
The appeal under Order 43 is not maintainable as the clarification order did not impose any restraint, and the matter should be resolved by expeditiously deciding the pending civil suit.
Summary
The petitioners, heirs of the deceased Vinayak Nimhan, challenged a District Court order dismissing their appeal against a clarification order dated 22 August 2016, which held that an earlier order of 18 February 2016 did not restrain the Pune Municipal Corporation from demolishing a wall. The High Court examined whether the appeal under Order 43 of the Code of Civil Procedure was maintainable, given that the earlier order merely clarified the absence of any injunction against demolition. It observed that the suit concerning the wall had been pending since 2015 and that the demolition had already been carried out, rendering the injunction issue academic. The Court concluded that allowing another appeal would only prolong litigation and directed the trial court to decide the underlying civil suit (No.2199 of 2015) expeditiously, preferably within 18 months. Consequently, the writ petition was disposed of without granting any relief, while keeping all parties' contentions open.
Issues considered
- What is the maintainability of an appeal filed under Order 43 of the Code of Civil Procedure against a clarification order that does not impose a restraining injunction?
- Whether the petitioners should be permitted to file a separate appeal against the 18 February 2016 order despite the wall already being demolished.
Legislation cited
- Code of Civil Procedure, 1908 — s. Order 43
Subjects
- injunction
- temporary restraining order
- civil appeal maintainability
- expeditious disposal
- municipal corporation
- demolition
- writ petition
- civil procedure
Judgment
2026:BHC-AS:34307
k 1/3 32 wp 4407.17 as.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.4407 OF 2017
Vinayak Nimhan
since deceased through legal heirs
Swati Vinayak Nimhan & Ors. ....Petitioners
V/S
The Municipal Corporation
of the City of Pune & Ors. ....Respondents
_________
Ms. Srushti Chalke i/b Ms. Drupad S. Patil for the Petitioners.
Mr. R.M. Pethe for Respondent Nos.1 and 2.
Mr. S.P. Thorat for Respondent No.3.
Mr. Hrishikesh S. Shinde for Respondent No.4.
__________
CORAM : SANDEEP V. MARNE, J.
DATE : 19 AUGUST 2026.
P.C.:
1. The Petition challenges the order dated 21 March 2017 passed by
the learned District Judge dismissing Miscellaneous Civil Appeal No.356
of 2016 as not maintainable. The Appeal was filed challenging order
dated 22 August 2016 passed by the Trial Court on Application at
Exhibit-45. The Application was filed by Pune Municipal Corporation
seeking a clarification that there was no restraint order operating by
virtue of order dated 18 February 2016 passed on Application at
Exhibit-5 which warranted stay of demolition of wall. The Trial Court
accordingly proceeded to clarify that the order dated 18 February 2016
actually did not grant any restraint order qua demolition of the wall.
katkam Page No. 1 of 3
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Petitioner got aggrieved by the order dated 22 August 2016 and
challenged the same by filing Appeal under Order 43 of the Code of Civil
Procedure, 1908 (the Code). The Appellate Court has held that the
Appeal is not maintainable.
2. It is seen that the Suit is pending since the year 2015 and a period
of 10 long years is spent in only clarifying the position as to whether the
Exhibit-5 order contemplated any restraint on the Municipal
Corporation from demolishing the wall. If order dated 18 February 2016
is perused the operative directions therein are as under:
"आदेश
"१. वादीचा निशाणी कमांक ५ अन्वयेचा अर्ज खर्चासह मंजुर करण्यात येतो.
२. प्रतिवादींना असे निर्देषित करण्यात येते की, स. नं. ३९/५, बाणेर या मिळकतीतील
कच्च्या ले आउटमुसार, आजपासुन पुढे, पुणे मनपा मंजुर करणार असले ल्या बांधकाम
नकाशाविषयीचे काम या दाव्याचा अंतिम निकाल लागे पावेतो पुणे मनपाने स्थगित ठे वावे.
३. पुणे मनपाने पुर्वी मंजुर केले ल्या स. नं. ३९/५, बाणेर या मिळकतीतील बांधकाम
नकाशावर या आदेशाचा कोणताही परिणाम होणार नाही.”
3. The Petitioner believes that since the Application at Exhibit-5 is
granted, all prayers made therein are necessarily allowed. However,
though the Trial Court has observed that the Application at Exhibit-5 is
allowed, the exact nature of injunction which is granted is clarified in
operative direction No.2 thereon, which does not include any restraint
order against the Municipal Corporation from demolishing the wall. In
that sense, the order passed by the Trial Court on 22 August 2016
appears to be in order.
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4. Since it is clear that order dated 18 February 2016 does not put
any restraint on Municipal Corporation from demolishing the wall, the
remedy for the Petitioners will be to challenge the order dated 18
February 2016 by filing a Miscellaneous Appeal before District Court.
However, instead of doing so, it would appropriate that the suit itself is
decided in an expeditious manner. If Petitioners are now permitted to
file an Appeal against order dated 18 February 2016, parties would
spend further time on the issue of temporary injunction. It is therefore
in the interest of all the parties that the suit itself is decided in an
expeditious manner. Even otherwise, the issue of demolition of wall has
been rendered academic on account of the fact that the Municipal
Corporation has actually demolished the wall.
5. Accordingly, Writ Petition is disposed of by requesting the Trial
Court to decide Regular Civil Suit No.2199 of 2015 in an expeditious,
manner preferably within a period of 18 months.
6. All contentions of the parties are expressly kept open. Writ
Petition is disposed of.
(SANDEEP V. MARNE, J.)
katkam
Signed by: Sudarshan R. Katkam Page No. 3 of 3
Designation: PS To Honourable Judge
Date: 20/08/2026 11:38:44
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