1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO.608 OF 2008 WITH CIVIL APPLICATION NO.704 OF 2008 Shri Pandurag Govind Sawant & Anr. : Appellants. versus Mumbai Municipal Corporation and ors. : Respondents. Shri Abhay D Thorat for the Appellants. Smt. K K Soraan for the Respondents BMC CORAM : R.M.SAVANT, J. DATED : FEBRUARY 03, 2009 P.C. 1. This Appeal takes exception to the Order dated 20.6.2008 passed by the learned Judge, City Civil Court, Mumbi by which order the Notice of Motion filed by the Appellants/Plaintiffs for the relief of injunction so as to restrain the Corporation from executing the notice dated 2.8.2006 issued under Section 351 of the Mumbai Municipal Corporation Act came to be dismissed. 2. The Appellants/Plaintiffs have filed L C Suit No.284 of 2008 2 challenging the notice dated 2.8.2006 issued under Section 351 of the Mumbai Municipal Corporation Act, 1988 and the order dated 12.6.2007 passed pursuant thereto by the Assistant Commissioner of the Respondent-1 Corporation. In the said suit the Appellants/Plaintiffs filed a Notice of Motion numbered as 354 of 2008 seeking injunction from executing the notice dated 2.8.2006 issued by the Respondent No.1 Corporation as regards room No.42-B, admeasuring 6.5 ft. x 9.5 ft in the Rustom Compound, G.K. Marg, Lower Parel, Mumbai-13. It was the case of the Plaintiffs that the Room adjacent to the suit room i.e. Room No.41-B was in possession of one Dhondiba Dandavate and the suit room i.e 42-B was in possession of his wife Kalpana Dandavate. This continued up to 1999. Thereafter both the rooms i.e. Room No.41-B and 42-B came in possession of the Plaintiff and his wife Shalan and since the year 2007 it was the Plaintiff No.2, as an Power of Attorney holder of the Plaintiff No.1, who is in possession of the suit room. It was alleged by the Respondent No.1-Corporation in the said notice dated 2.8.2006 that the Plaintiff was carrying out unauthorized construction and the Respondent No.1 Corporation therefore called upon the 3 Plaintiff to stop the construction activity and thereafter the Assistant Commissioner of the Respondent No.1-Corporation passed the order dated 12.6.2007, directing demolition of the suit premises. 3. In support of their case, the Plaintiffs produced rent receipts issued by Hendre Investments and Guarantee Co. Pvt. Ltd which, according to the Plaintiffs, are the landlords. The said receipts are from 14.2.1991 to 3.12.1997. The last receipt is of 3.12.1997. The trial Court considered the said receipts and since most of the receipts pertain to Room Nos.41-A, 41-B, 42 and only one pertains to Room No.42-B, held that it would be very difficult to hold that the Plaintiffs predecessor in title i.e the said Dandavates, are in possession of the suit property. The trial Court also took into consideration the fact that when the notice dated 2.8.2006 under Section 351 of the Act was issued to Kalpana Dandavate at the address mentioned as 239 A Hendre Building Compound, the said notice was replied on her behalf by her advocate by categorically denying the address 239A being wrong address and that the correct address of the said Kalpana was Room No.96 of Rustom Building. The trial Court was, therefore, of 4 the view that the said letter of the advocate of Kalpana Dandavate proves that she was not residing in Room No.42-B. 4. In so far as ration card produced by the Plaintiffs of their Predecessor in title i.e. Shri Dandavate is concerned, the trial Court on perusal of the ration card recorded a finding that the address shown is room No.41-B and that Room No.42-B appears to have been added later on and since the other documents disprove the case of Kalpana Dandavate that she was residing in Room No.42-B, it was not possible to accept the case of the Plaintiffs that Kalpana Dandavate was in occupation of Room No.42-B. The trial Court considering the documentary evidence produced on record came to a conclusion that the Plaintiffs had failed to make out a prima facie case for grant of injunction in respect of the said Room No.42-B and, therefore, dismissed the said Notice of Motion. 5. Having perused the impugned order as also having considered the finding recorded by the trial Court based on the documents produced by the Plaintiffs in support of their case, in my 5 view, no fault can be found with the reasoning of the trial Court that the Plaintiffs had failed to make out a prima facie case for grant of the discretionary relief of injunction. The Appeal from Order is accordingly dismissed. 6. In view of the dismissal of the above Appeal from Order, the Civil Application No.704 of 2008 is accordingly disposed of. [R.M.SAVANT, J]