1 AO-681-11.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION Mhi APPEAL FROM ORDER NO. 681 OF 2011 WITH CIVIL APPLICATION NO. 913 OF 2011 Rajnikant Abheychand Mandalia ... Appellant vs. The Municipal Corporation of Gr.Mumbai. ... Respondent Mr. R.A.Thorat i/b. P.J.Thorat,Advocate, for the appellant Mrs. K.K.Soraan,Advocate for the respondent. CORAM: J.H.BHATIA,J. DATE : 20th July, 2011. P.C. 1. Heard the learned Counsel for the parties. 2. The original plaintiff has preferred this Appeal against rejection of Notice of Motion whereby he had sought injunction restraining the Municipal Corporation from demolishing the suit structure in pursuance to the notice and the order issued under Section 351. According to the plaintiff, he was inducted in the suit structure by the previous owner and landlord of the building Chandubhai V.Patel (HUF) under the tenancy agreements dated 6.1.2000. According to him, under one agreement, he was inducted as a tenant in the premises identified as 2 AO-681-11.sxw Shop No.24-A, Ground floor of Sai-Krupa Building, situated at Plot No.125, Dr. Manubhai P. Vaidya Marg, (Tilak Road), Ghatkopar (East), Mumbai 400 077. By another agreement of the same date, he was inducted as a tenant in the premises identified as Shop No.24-B, abutting 24-A in the same building and thus since then he is in occupation of the said premises. He also relies upon a letter dated 28.2.2001 purported to have been issued by landlord Chandubhai V. Patel in favour of the plaintiff whereby NOC was given to him for storage of the edible articles after preparation in two rooms - one admeasuring about 170 sq. ft. and another admeassuring about 125 sq. ft. He was permitted to seek necessary permissions and licences from the different departments and also to avail new electric connection. He has also produced photocopy of a conveyance deed executed by the original owners/landlords of Patel family in favour of the present owner Dilipbhai Bhagat. That document is registered on 11.2.2008. The deed of conveyance is accompanied by large number of accompaniments. There is also one annexure "A" showing the list of tenants. However, the name of the plaintiff is not shown in that list, but in accompaniments there is one rent receipt for the period from January 2006 to February 2007 in favour of the present plaintiff. That receipt refers to the premises as G No.3 i.e. Godown No.3 in Sai Krupa Building. According to the plaintiff, he has also filed RAD Suit Nos.608/2011 and 609/2011 before the Small Cause Court for declaration that he is a tenant in the said 3 AO-681-11.sxw premises and he should not be evicted otherwise than by due process of law and those suits are pending for decision. Whether the plaintiff is in possession of that premises as a tenant or not is to be decided by the Small Cause Court. If it is found that he is in occupation of the premises as a tenant, that will indicate that the structure in dispute must have been in existence prior to 6.1.2000 when the alleged agreements were executed and, therefore, that may also support the contention of the plaintiff that he himself has not made any new constriction and if any illegality was done, that was by the previous landlord. 3. It is a fact that no document was produced by the plaintiff to show that this structure was constructed as per the approved plan nor there is any material on record to show that the structure was in existence since prior to 1.1.1962 or 1.1.1964 which could give protection to suit structure. If the plaintiff is in possession since 6.1.2000 as a tenant, as he claims, the landlord will have to explain how and when the structure was constructed and for that purpose the landlord will have to be impleaded as defendant in the suit so that he may get an opportunity to produce all the material and documents about construction of the said structure. The fact that copy of the rent receipt issued in favour of the present plaintiff is one of the accompaniments of the conveyance deed executed by the earlier owners and landlords in favour of the present owner at least 4 AO-681-11.sxw provides prima facie corroboration to the contention of the plaintiff. In view of these circumstances, I find that interest of justice requires that some protection should be given to the plaintiff. 4. In view of the above circumstances, the Appeal is allowed. The impugned order rejecting the Notice of Motion is set aside. The Notice of Motion is allowed and the Defendant/Municipal Corporation is hereby restrained from taking any action against the disputed structure till decision of the suit with following conditions :- (i) In case the RAD Suit Nos. 608/2011 and 609/2011 filed by the plaintiff for declaration that he is in occupation of the premises as a tenant are decreed, this temporary injunction shall continue pending the L.C. Suit No. 472/2011 in the City Civil Court but if those two suits are dismissed by the Small Cause Court, this temporary injunction shall stand automatically vacated and the Municipal corporation shall be at liberty to demolish the structure as per the notice and order under Sec. 351. (ii) In case the plaintiff succeeds in RAD Suit Nos. 608/2011 and 609/2011, he would also implead the original landlords and the present landlord as 5 AO-681-11.sxw defendants so that they may get an opportunity to produce relevant material and may explain how and when the disputed structure was constructed. (iii) The Municipal Corporation shall file written statement before the trial Court within six weeks and the trial Court shall expedite the hearing and dispose of the suit as early as possible and preferably within six months. 5. As the Appeal itself is disposed of, C.A. No.913/2011 does not survive and stands disposed of accordingly. (J.H.BHATIA,J.)