K. A. PUJ, J. ( 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 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 appellants are being damaged. She has also submitted that after the devastation suffered due to the earthquake in January 2001, the heavy load of R. C. C structure along with the tons of mud and stones poses a serious safety hazard to the lives of persons occupying the complex. She has also submitted that after the devastation suffered due to the earthquake in January 2001, the heavy load of R. C. C structure along with the tons of mud and stones poses a serious safety hazard to the lives of persons occupying the complex. She has, therefore submitted that in the interest of public safety such terrace gardens are required to be totally prohibited. ( 4 ) MS. MANISHA Lavkumar has further submitted that before filing the suit before the Trial Court, the appellant negotiated the problem with respondent nos. 1 and2 and requested them to remove soil, mud and water from the terrace. The respondent nos. 1 and 2 agreed to do so but infact did not stand by to the assurance given to the appellant. The appellant, therefore, made a complaint to the Vadodara Municipal Corporation and the Town Planning Officer, the respondent nos. 3 and 4 herein to remove the terrace garden and unauthorised permanent structure constructed and created by respondent nos. 1 and 2. However no serious actions were taken by the Corporation except issuance of formal notice to remove the said unauthorised structure. The appellant has also filed a Criminal complaint No. 149/2002 on 29/8/2002 against the respondent nos. 1 and 2 in the Court of the learned Chief Judicial Magistrate, Vadodara and the police investigation was ordered to be made. However no final report has yet been submitted by the police authorities. She has submitted that the occupants of the complex also carried out a signature campaign calling upon the present opponents to remove the heavy load from the terrace. An appeal made by the occupants to the President of the Association on 30th June 2003 contains the request that on various occasions the members individually informed the respondent nos. 1 and 2 about the damage it has caused to the whole building complex endangering the life of the people under it and to the properties. However, no remedial action was taken by them for the removal of the said load on the terrace. It was also pointed out that already monsoon set on and before any further damage took place certain actions for removal of the gardens with wet soil, rock water falls, fountains, mud, tress and big bushes from the terrace of the complex, are required to be taken. ( 5 ) MS. Manisha Lavkumar has further submitted that respondent nos. It was also pointed out that already monsoon set on and before any further damage took place certain actions for removal of the gardens with wet soil, rock water falls, fountains, mud, tress and big bushes from the terrace of the complex, are required to be taken. ( 5 ) MS. Manisha Lavkumar has further submitted that respondent nos. 1 and 2 have also filed Regular Suit No. 1209/2001 in the Civil Court of Civil Judge (S. D.) Vadodara against the respondent nos. 3 and 4 praying for a declaration against the corporation restraining them from removing the terrace garden and in the said suit , the Court has not granted any injunction against the respondent nos. 3 and 4 and the application below Exh. 5 is still pending. She has further submitted that though the present appellant is directly affected by the outcome of the said proceeding the appellant has not been joined as the party in the said suit. She has further submitted that the respondent nos. 1 and2 are extremely influential builders and in collusion with the respondent nos. 3 and 4 have managed to ensure that the illegal structure put up on the terrace is not removed. The appellant was, therefore, left with no other alternative but to approach the Trial Court by filing Special Civil Suit No. 899/2002 praying for declaration that the respondent nos. 1 and 2 are not entitled to prevent the appellant from making use of the terrace which is of common ownership of all the occupants of the commercial complex and further prayed for mandatary injunction in terms of removing unauthorised construction made on the terrace and of removing of the soil, mud, stones, water-pools along with the fishes and turtles kept in the said water-pool as well as the grown up plants, trees etc. planted in the terrace garden of the terrace of the complex. The appellant has also prayed for the mandatory directions against the respondents no. 3 and 4 for taking appropriate action for removal of the gardens and unauthorised construction of permanent nature of the Panorama building. ( 6 ) MS. Lavkumar has further submitted that the Trial Court has committed an error in coming to the conclusion that the appellant has failed to establish the prima-facie case against the respondent nos. 3 and 4 for taking appropriate action for removal of the gardens and unauthorised construction of permanent nature of the Panorama building. ( 6 ) MS. Lavkumar has further submitted that the Trial Court has committed an error in coming to the conclusion that the appellant has failed to establish the prima-facie case against the respondent nos. 1 and 2 and that the existence of the gardens has not been proved by leading evidence. She has submitted that the said finding of the learned Trial Judge is contrary to the established facts on record. The appellant has specifically averred in its plaint as well as Exh. 5 applicant that the respondent nos. 1 and 2 have constructed a permanent structure and made a terrace garden together with water-pool, rock garden etc. on the terrace. Even the photographs establishing the said fact have been placed on record to the Trial Court. These facts are prima-facie established before the Trial Court and thereafter the question which has to be decided by the Trial Court was whether such terrace garden is detrimental to the premises owned and possessed by the appellant and to the safety of the other occupants of the said complex. She has further submitted that even with regard to this issue there are sufficient and ample evidence available in the written statement filed by respondent nos. 3 and 4 on behalf of the Vadodara Municipal Corporation and Town Planning Officer. In paragraph 5 of the said written statement it was specifically mentioned that the respondent nos. 1 and 2 have constructed two rock mountains with fountain and water is flowing from the top of the hill to the ground of the terrace. It was also stated in the said written statement that no prior permission has been obtained before making the said construction and the said construction poses a serious threat to the safety of the building and the corporation has also issued notice to the respondents to remove the same. The corporation has also recorded the finding with regard to the existence of the big vessels full of soil admeasuring 3 to 4 feet in height being placed on he terrace and plants and tress being grown on the terrace. It was also recorded that respondents no. 1 and 2 have used iron pillars and iron fabrication work in the area of 10/10 sq. It was also recorded that respondents no. 1 and 2 have used iron pillars and iron fabrication work in the area of 10/10 sq. feet with a view to give support in the growth of the plants. It was further stated that due to the large quantity of soil and permanent structure made by the respondents on the terrace the load on the terrace has substantially increased. It was further stated that the terrace garden made by the respondents no. 1 and 2 are against the provisions of law and without obtaining permission of the Vadodara Municipal Corporation. ( 7 ) MS. LAVKUMAR has further submitted that the Trial Court has not considered the averments made by the appellant in the plaint and injunction application as well as the written statement filed by the respondents no. 3 and 4. She has further submitted that the Learned Trial Judge has not taken into account the gravity of the situation created in the entire State of Gujarat as a result of earthquakes. She has submitted that past experience has demonstrated that heavy load on the terrace is a sole major factor in inviting calamities. She has further submitted that inspite of certain cogent, clear and unequivocal material on record the Learned Trial Judge had held that there is no prima-facie case of the appellant. The finding of the Learned Trial Judge is, therefore, perverse and against the documents and evidence on record. She has, therefore, submitted that this Court should interfere in the order passed by the Learned Trial Court by exercising its appellate jurisdiction under Order 43 Rule-1 of the Civil Procedure Code. ( 8 ) MR. KAUSHAL Pandya the learned advocate appearing for the respondents no. 1 and 2 has raised the preliminary objection against the maintainability of the present appeal from order. He has submitted that the suit filed by the appellant before the Trial Court has valued at Rs. 300. 00 for the purpose of jurisdiction and Court fees as it was a suit for declaration and permanent injunction. He has therefore, submitted that appeal from order against the order passed in the suit valued at Rs. 300. 00 for the purpose of jurisdiction and Court fees, can be filed before the District Court and not before this Court. 300. 00 for the purpose of jurisdiction and Court fees as it was a suit for declaration and permanent injunction. He has therefore, submitted that appeal from order against the order passed in the suit valued at Rs. 300. 00 for the purpose of jurisdiction and Court fees, can be filed before the District Court and not before this Court. He has therefore, submitted that the office should be directed to return the appeal from order to the District Court without disturbing the order passed by the Trial Court. In support of his submissions he has relied on the decision of this Court in the case of Filoma Pathubhai Patel v. Ambalal D. Bhagat reported in 1987 (1) GLH (UJ-21), wherein it was held that by virtue of deeming fiction comes into operation and because of the said deeming fiction, the valuation for the purpose of the Court fees automatically governs the valuation for the purpose of jurisdiction. In that case the Court fee stamp of Rs. 300. 00 was affixed and it was valued for the purpose of Court fees u/s. 6 (iv) (j) of the Bombay Court Fees Act. The con-joint reading of the provisions of Bombay Court Fees Act, 1959 i. e. Section 6 (iv) (j) and Sections 4 to 8 of the Suit Valuation Act clearly shows that when the plaintiff determines or fixes his own valuation, when the relief claimed in the suit is not susceptible to monetary valuation, valuation fixed by him for the purpose of Court fees would be the valuation for the purpose of jurisdiction also. ( 9 ) APART from the above preliminary objection, Mr. Kaushal Pandya has further submitted that even on merits also the appellant does not deserve for any relief and the Trial Court has rightly rejected the injunction application. He has submitted that the appellant has no right whatsoever to ask for any relief against the respondents no. 1 and 2. He has submitted that the respondents no. 1 and 2 are the exclusive owners of the terrace and the association has already passed a resolution way back on 30/9/1990 whereby the terrace right have been given to the appellant after taking requisite consideration for the same from the appellant. 1 and 2. He has submitted that the respondents no. 1 and 2 are the exclusive owners of the terrace and the association has already passed a resolution way back on 30/9/1990 whereby the terrace right have been given to the appellant after taking requisite consideration for the same from the appellant. He has further submitted that whatever was done by them on the terrace was in accordance with the approved plan and in due compliance with the Rules and Regulations of the corporation and even from the point of view of the frivolous there should not be any objection against developing of a garden on the terrace. He has further submitted that such garden is for more than 10 years and even at the time of earthquake or thereafter no damage was done to the building at all. The appellant has filed the suit and made several complaints before the corporation only with a view to harass the respondents no. 1 and 2 and it is only because of the personal vendetta or vengeance the legal proceedings were initiated. He has further submitted that when the appeal from order is itself not maintainable the Court need not go into the merits of the matter and no order or direction whatsoever may be passed and/or given in the present proceedings. He relied on the decision of the Honble Supreme Court in the case of State of Orissa vs. Madan Gopal AIR 1952 Supreme Court 12 wherein it is held that Art. 226 cannot be used for the purpose of giving interim relief as the only and final relief on the application. The interim relief can be granted only in aid of ancillary to the main relief which may be available to the party of final determination of his rights in suit or proceeding. If the Court was of the opinion that there was no other convenient or adequate remedy open to the petitioners, it might have proceeded to investigate the case on its merits and come to a conclusion as to whether the petitioners succeeded in establishing that there was an infringement in any of the rights which entitled them to a writ of mandamus or any other direction of a like nature, and pending such determination it might have made a suitable interim order for maintaining the status quo ante. But when the Court declined to decide on the rights of the parties and expressly held that they should be investigated more properly in a civil suit, it could not, for the purpose of facilitating the institution of such suit, issue direction in the nature of temporary injunctions, under Article 226 of the Constitution. The language of Art. 226 does not permit such an action. Mr. Pandya has further relied on the decision of the Honble Supreme Court in the case of Tin Plate Co. of India Ltd. , vs. State of Bihar reported in AIR 1999 Supreme Court 74, wherein it is held that if the High Court is to dismiss the writ petition on the ground of alternative remedy, it would be a sound exercise of jurisdiction to refrain itself from expressing any opinion on the merits of the case which ultimately is to be taken up by person before an alternative forum. ( 10 ) MR. NILESH A. Pandya learned advocate appearing for respondents no. 3 and 4 has submitted that the respondents no. 1 and 2 have not taken any permission of the Corporation while making unauthorised construction on the terrace. He has further submitted that the Corporation has already issued the notice to the respondents no. 3 and 4 for removing such unauthorised construction. The respondents no. 1 and 2 however, inspite of complying with the said notice, have filed a suit before the Court at Vadodara praying for injunction against the implementation of the said notice. The Court has however not granted any stay in the said matter. He has further submitted that because of the order of status quo passed by this Court, the respondent Corporation is not in a position to take any action against the respondents no. 3 and 4. He has, therefore, submitted that the order of status quo may be vacated and the Corporation may be directed to take appropriate action pursuant to the notice issued by the Corporation. ( 11 ) AFTER having heard learned advocate appearing for the respective parties and after having gone through the order of the Trial Court and also having perused the authorities cited before the Court, the Court is of the view that though the preliminary issue is raised before the Court by the respondents no. ( 11 ) AFTER having heard learned advocate appearing for the respective parties and after having gone through the order of the Trial Court and also having perused the authorities cited before the Court, the Court is of the view that though the preliminary issue is raised before the Court by the respondents no. 1 and 2 with regard to the jurisdiction of this Court to entertain the appeal from order filed by the appellant on account of subject matter of the suit filed by the appellant valued at Rs. 300. 00 in the plaint and though there is a binding decision of this Court in the case of Filoma Pathubhai Patel v. Ambalal D. Bhagat reported in 1987 (1) GLH (UJ-21) the appeal cannot be ordered to be returned to the appellant so as to present it before the District Court because of the observations made by the Division Bench of this Court in the case of Manubhai Khandubhai Naik v. Sumantrai Ranchhodji Naik (Deceased) through his legal heirs and Ors. 45 (1) GLR 488 wherein this Court has observed that for the purpose of deciding that the appeal lies or not to the High Curt the value for the purpose of jurisdiction would be material which was Rs. 1 lac being the market value of the property as mentioned in para 7. Obviously, therefore, against the judgment and decree of the Learned Civil Judge (S. D.) an appeal would lie to the High Court in view of Section 26 of the Bombay Civil Courts Act, 1869, which provided that in all suits decided by a Civil Judge of which amount or value of the subject matter exceeds Rs. 10,000. 00 (which later on was substituted by Rs. 20,000. 00), the appeal from this decision shall be directed to the High Court. In this connection Ms. Manisha Lavkumar has made a statement before this Court that though the suit was valued at Rs. 300. 00 in the plaint the appellant is ready and willing to enhance the valuation of the suit as the appellant has also made the prayer that the appellant is entitled to make use of the terrace portion which is commonly shared by all the owners/occupants of the complex in question. Even otherwise Section 14 of the Bombay Court Fees Act 1959, deals with decision of question as to valuation. Even otherwise Section 14 of the Bombay Court Fees Act 1959, deals with decision of question as to valuation. Sub Section 1 of Section 14 states that every question relating to valuation for the purpose of determining the amount of fee chargeable under this chapter on a plaint or memorandum of appeal shall be decided by the Court in which such plaint or memorandum, as the case may be is filed, and such decision shall be final as between the parties to the suit. Though the respondents no. 1 and 2 have specifically raised the issue regarding valuation of the suit in their written statement/affidavit in reply, the learned Trial Judge has not dealt with this aspect while disposing of the application Exh. 5 and rejected the said injunction application. Before this Court, the respondents no. 1 and 2 have raised the issue that since the suit valuation is only of Rs. 300. 00 the present appeal from order would not lie before this Court but it would lie before the District Court. In this context Sub Section 2 of Section 14 is equally important, which says that"but whenever any such suit comes before a Court of appeal, reference or revision, if such Court considers that the said question has been wrongly decided to the detriment of the revenue, it shall require the party by whom such fee has been paid, to pay so much additional fee as would have been payable had the question been rightly decided. " ( 12 ) KEEPING this provision in mind, the present appellant is directed to affix the requisite Court fee on the plaint within 30 days from the date of receipt of writ or certified copy whichever is earlier on the valuation so made. In view of this direction, the preliminary issue raised by the respondents no. 1 and 2 would not survive and the appeal is now decided on merits. ( 13 ) AS far as merits of the matter are concerned, the Trial Court has observed that it is on record that as per the reply of defendant nos. 3 and 4, they have issued notice to defendant nos. 1 and 2 stating that they have raised structure on the terrace without any permission of the Vadodara Municipal Corporation. The Trial Court has further observed that the defendant no. 3 and 4, they have issued notice to defendant nos. 1 and 2 stating that they have raised structure on the terrace without any permission of the Vadodara Municipal Corporation. The Trial Court has further observed that the defendant no. 1 has given assurance to the plaintiff that the balance of mud would be removed shortly but the defendant no. 1 has not fulfilled his assurance. It has also been observed by the Trial Court that though the defendant nos. 1 and 2 have stated on the basis of the certificate issued by the structural consultant, namely Mr. J. K. Vyas that the property is safe and serviceable, no such certificate was produced saying that no damage or loss has caused to the building during earthquake. The Trial Court has further observed that the terrace garden was not properly maintained as per the opinion of the defendants no. 3 and4. After recording the submissions and pleadings of the parties, the Trial Court has merely observed that these averments require recording of evidence and without recording and/or leading evidence, it was impossible to arrive at a decision and on that basis the Trial Court has come to the conclusion that there was no prima-facie case in favour of the plaintiff and on that ground the injunction application was rejected. In my view the Trial Court has not come to the just and proper conclusion as serious grievance was raised by the plaintiff before the Trial Court. It is an admitted position that no permission was sought for by the defendant nos. 1 and 2 for developing the terrace garden. Not only that, the notice was issued by the Corporation which was challenged before the Civil Court. It is the case of the present appellant that the terrace is belonging to all the members and it is of common ownership of all the occupants/owners of the commercial complex. It is also an admitted position that on the terrace garden there was soil, mud, stones, water-pool alongwith the fishes and turtles kept in the water-pool as well as grown up plants, trees etc. Normally the terrace is not meant for keeping all these things. During earthquake because of the heavy load lying on the terrace many buildings have fallen down. Normally the terrace is not meant for keeping all these things. During earthquake because of the heavy load lying on the terrace many buildings have fallen down. Keeping this fact in mind the Trial Court should have considered the grievance raised by the plaintiff in the suit and should have given the direction to remove the same. Since this has not been done, this Court is of the view that the order of the Trial Court requires interference. As suit is pending before the Trial Court, this Court at this juncture does not want to express any opinion as to whether the defendants no. 1 and 2 are having the exclusive right over the terrace or the terrace is belonging to all the owners/occupants of the complex. The Court is however certainly of the view that the objectionable things which are found in the terrace should not be allowed to remain for any further period. This appeal from order is, therefore, allowed to the extent of giving directions to the respondents no. 1 and 2 to remove the unauthorised construction on the terrace and also to remove soil, mud, stones, water-pool along with fishes and turtles kept in the water-pool as well as the grown up plants, trees, planted in the terrace garden, if the same are objectionable to the appellant and/or other occupants/owners of the complex and till the said unauthorised construction is demolished or the objectionable things are removed, the respondents original defendants no. 1 and 2 and/or their agents, servants, nominees etc. are restrained from making use of the said terrace. It is made clear that by virtue of this order the respondents no. 3 and 4 are in no way restrained from taking any action pursuant to the notice or in accordance of provisions of law. ( 14 ) WITH the above observations and directions, the present appeal from order is allowed to the above extent. ( 15 ) IN view of the order passed in appeal from order Civil Application is also accordingly dismissed. ( 16 ) AT this juncture Mr. Kaushal Pandya the learned Advocate appearing for the Respondents no. 1 and 2 makes a request to stay the execution, operation and implementation of this order to, some time so as to enable them to approach the higher forum. Ms. Manisha Lavkumar strongly objected to the said request. ( 16 ) AT this juncture Mr. Kaushal Pandya the learned Advocate appearing for the Respondents no. 1 and 2 makes a request to stay the execution, operation and implementation of this order to, some time so as to enable them to approach the higher forum. Ms. Manisha Lavkumar strongly objected to the said request. Having regard to the facts and circumstances of the case and looking to the gravity of the issue, the request is rejected. Direct Service is permitted. .