( 1 ) THIS appeal from order is filed against the order passed by Learned 10th Joint Civil Judge (Senior Division) Vadodara below application Exh. 5 in Special Civil Suit No. 899/2002 whereby the Learned Trial Judge has rejected the application Exh. 5. The appellant-original plaintiff has prayed for an order directing the respondents-original defendant nos. 1 and 2 for removal of an unauthorised construction made in the terrace and for an order or direction not to restrain the plaintiff and other members of the association from utilizing the said terrace and also for seeking direction against respondent nos. 3 and 4 to remove the said unauthorised construction, and to remove the objectionable things which were lying on the terrace. The Trial Court has rejected the injunction application on the ground that the averments made by all the parties require the recording of evidence and without recording or leading evidence it was impossible to arrive at any decision at the said stage and on that ground the Trial Court has observed that there was no prima-facie case in favour of the present appellant-original plaintiff nor the balance of convenience was in favour of the original plaintiff present appellant. It was further observed that no irreparable loss caused to the appellant.

( 2 ) THIS Court has admitted the appeal from order on 16/2/2004 and in Civil Application status quo as on that day was directed to be maintained. When the matter has come up for hearing on 12/4/2004 Ms. Manisha Lavkumar learned advocate appearing for the appellant has submitted that because of the order of status quo passed by this Court the damage to the building continued and the objectionable things lying on the terrace are required to be removed forthwith. Mr. Nilesh A. Pandya learned advocate appearing for the respondent nos. 3 and 4 has also submitted that because of the order of the status quo, the respondent corporation could not take any action against the respondent nos. 1 and 2 for removal of the objectional things. This Court has, therefore, asked a question to Mr. Kaushal D. Pandya learned advocate appearing for respondent nos. 1 and 2 as to why the respondent nos. 1 and 2 be not restrained from enjoying the disputed terrace till the hearing and final disposal of the suit to which he has replied that he has to take instructions in the matter. The matter was thereafter adjourned twice and it was heard fully on 19/4/2004. Mr. Kaushal D. Pandya has however asked for some more time to take sense of his client and that is how the matter is kept today for part heard.

( 3 ) MS. MANISHA Lavkumar the learned advocate appearing for the appellant has submitted that the office of the appellant is situated at 2nd Floor of Panorama Complex and the respondent nos. 1 and 2 are occupying the office premises on the third floor along with the terrace adjacent thereto. She has submitted that the respondent nos. 1 and 2 have enclosed the way leading to the terrace and have converted the same into a terrace garden, comprising of well grown tress, green lawns, rock garden and a water pool with fishes, turtles etc. She has further submitted that the glazed titles were removed and an Iron and R. C. C. structure is constructed in its place. She has further submitted that a layer of mud, soil and stones admeasuring approximately 3 to 4 feet in height is spreaded over the terrace. The office of the appellant is situated immediately below the terrace garden unauthorisedly constructed by the respondent nos. 1 and 2 and the slabs of the terrace and iron rods used in the said terrace are being damaged due to permanent presence of the water in the garden. She has further submitted that due to constant moisture seepage, the ceiling of the office of the appellant remains wet and water constantly leaks, thereby damaging the computers, furnishings and other office equipments. She has, therefore, submitted that with each passing day, the office premises of the present