1 mca35 ssp IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION MISCELLANEOUS CIVIL APPLICATION NO.35 OF 2011 Bambina Pillai ...Applicant vs. The Municipal Corporation of Greater Mumbai ...Respondent Ms Sudeshna Guha Roy i/b M/s.Vidhi Partners & Advocate for the applicant Mr.Vinod Mahadik for the respondent CORAM : A.S.OKA,J. DATE : MARCH 16,2011 P.C.: 1 Heard learned counsel for the applicant. The applicant is the plaintiff in a suit filed against the respondent-Corporation in the City Civil Court at Mumbai where the challenge is to the legality and validity of notice issued under section 53(1) of the Maharashtra Regional and Town Planning Act,1966. In the notice it is alleged that the applicant has carried out certain unauthorized construction as set out in the schedule. The Chembur Atur Park (Bunglows) Co-operative Housing Society Limited and three others have filed a suit on the Original Side of this Court seeking relief against the defendants therein for transferring the suit property subject matter of the said suit in favour of the said society. The prayer in this application under section 24 of the Code of Civil Procedure,1908 is that the suit pending in the City Civil Court be transferred to this Court. 2 The submission of the learned counsel for the applicant is that if the suit filed by the plaintiff in 2 mca35 this Court is decreed, the applicant will acquire title to the property on which the alleged unauthorized construction has been carried out. In that case, assuming that there is any authorized construction carried out, the decree in the suit filed in this Court will facilitate the applicant in applying for regularization. Relying upon the decision of the Division Bench of Calcutta High Court in case of Saroj Bushini Debi Vs. Girija Prasad Bhattacharjee (AIR 1920 Calcutta 326), the learned counsel for the applicant submitted that similar issues are involved in both the suits and therefore, both the suits will have to be heard by the same Court. Therefore, the learned counsel prays for transfer of the suit from City Civil Court to this Court. 3 I have given careful consideration to the submissions. The challenge in the suit filed in the City Civil Court is to the notice under section 53(1) of the said Act of 1966. The said notice is for removal of the alleged construction. Relief of declaration and injunction is prayed for in the said suit. Only issue which will have to be decided in the suit is whether the applicant has carried out any unauthorized construction as alleged in the notice under section 53(1) of the said Act. The suit has nothing to do with the issue of title. Only the Municipal Corporation is a party to the suit filed in the City Civil Court. To the suit filed in this Court, there are several private parties who are not parties to the suit in the City Civil Court. 4 The suit filed in this Court by the Chembur Atur Park (Bunglows) Co-operative Housing Society Limited and three others is in substance for procuring the conveyance 3 mca35 in respect of the immovable property subject matter of the said suit. Therefore, it cannot be said that the issues arising in both the suits are same. 5 The issue arising in the suit filed in the City Civil Court is whether the applicant has carried out alleged unathorised construction. The said issue will not arise in the suit filed in this Court. A notice of motion for injunction taken out by the applicant in the City Civil Court suit has been made absolute by order dated 17th March 2009 and thus, the structure of the applicant has been protected till the final disposal of the suit. It cannot be disputed that the suit of the year 2006 filed in this Court will remain pending in this Court for many more years considering the huge pendency of the very old suits. Whereas, the suit filed in the City Civil Court will be disposed of expeditiously within a period of 2-3 years. 6 For all the aforesaid reasons, no case is made out for passing order of transfer. Application is rejected. JUDGE