1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD SECOND APPEAL NO. 608 OF 2009 The Chairman Ahmednagar Irrigation and Power Department Employees Co­operative Credit Society, Ahmedndagar .. APPELLANT VERSUS Krishnaji Keshav Kulkarni (deceased through LRs) & another .. RESPONDENTS Mr. A.R. Kale holidng for Mr. B.V. Wagh and Mr. S.D. Kulkarni, Advocate for the appellant. Mr. K.N. Lokhande, Advocate for respondent no. 2. Mr. Y.V. Kakade, Advocate for respondent no. 1A. ===== CORAM : R. M. BORDE, J. DATE : 7 th October, 2009. PER COURT : 1 This is an appeal by original defendant no. 2 raising exception to the judgment and decree passed by the District Judge, Ahmednagar on 3­7­2001 in Regular Civil Appeal no. 35/1997 whereby the first appellate court has reversed the judgment and decree passed by the 2 nd Jt. Civil Judge, Jr.Dn., Ahmednagar on 28­11­1996 in Regular Civil Suit no. 582/1991. 2 2 Respondent no. 1 / original plaintiff is seeking decree of perpetual injunction restraining the defendants from taking steps in respect of demolition of the property in pursuance to the notice issued by the Municipal Corporation on 3­7­1991. It is the contention of the plaintiff that he is a tenant inducted by respondent no. 1 in respect of the suit premises and he is in possession of the property since 1958. Defendant no. 1 has sought eviction of the tenant by presenting suit bearing Regular Civil Suit no. 1160/1987. Possession of the tenanted premises was sought by the landlord for his bonafide personal needs. The suit presented by the landlord however, came to be dismissed. Appeal presented raising exception to the judgment passed by the trial court is also dismissed. In the meantime, municipal counsel issued notice in respect of demolition of the suit premises. Demolition is sought for on the ground that the tenanted premises are rendered unfit as the construction is old one and is in dilapidated condition. Plaintiff contends that it is defendant no. 2 who is instrumental in issuing the notice and infact premises occupied by the tenant are in habitable condition. 3 Defendants appeared and presented written statement and controverted the contentions raised by the plaintiff. Municipal council has 3 stated in the reply that the suit proerty is in dilapidated condition and is not fit for occupation. Defendant no. 2 has also opposed the contentions raised in the plaint by filing written statement on the similar grounds. 4 Trial court after considering the evidence led by the parties recorded finding that plaintiff has not substantiated his case and as such dismissed the suit. Appeal presented by the plaintiff came to be allowed by the first appellate court. 5 I have perused the judgments recorded by both the courts below. The first appellate court has recorded finding that as defendant no. 2 has failed in his attempt to secure vacant possession of the property, he is instrumental in issuing notice by the Municipal council. Contention raised by the plaintiff that the building is in habitable condition is accepted. Had the building been unfit for occupation, defendant no.2 who is landlord would have surely raised eviction of tenant on the said ground. However, neither in the suit nor in the appeal, defendant no. 2 has sought eviction of the tenant on the ground that the building is dangerous or is in dilapidated condition. Municipal Council except filing written statement had done nothing in the suit. There is no evidence led by the Municipal Council as to what is the 4 basis for issuing notice seeking demolition of the premises. Municipal council has failed to place on record report of any of its officers as regards the condition of the suit property. Defendant no. 1 has also not led any evidence to establish their contention that the building in not in dilapidated condition. In these circumstances, the appellate court was justified in directing issuance of prohibitory order restraining the Municipal Council from demolishing the suit premises without following due procedure. The view adopted by the first appellate court is reasonable and proper. In exercise of powers under section 100 of the Code of Civil Procedure, no interference is required to be cause in the instant appeal. Appeal therefore stands dismissed summarily. 6 In view of dismissal of the appeal, pending civil application, if any, stands disposed of. ( R. M. BORDE, J.) dyb/office/sa608.09.odt