1 fa1941-ca576 ssp IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION FIRST APPEAL NO.1941 OF 2010 WITH CIVIL APPLICATION NO.576 OF 2011 Malati Shetty & Anr. ...Appellants vs. Municipal Corporation of Greater Mumbai ...Respondent Ms Sukeshi Bhandari for the appellants Ms K.K.Soraan for the respondent CORAM : A.S.OKA,J. DATE : MARCH 10,2011 P.C.: 1 Heard learned counsel for the parties. Appeal is forthwith taken up for final hearing. The appellants are the original plaintiffs and the respondent-Corporation is the original defendant. A suit was filed by the appellants for challenging the notice issued by the respondent-Corporation under section 351 of the Mumbai Municipal Corporation Act,1888 (hereinafter referred to as the said Act) and the order of demolition passed by the respondent-Corporation on the basis of the said notice. 2 The case made out by the appellants is that the suit structure is in existence much prior to 1st April 1962 and therefore, the structure has been protected as per the policy of the respondent-Corporation. The suit was contested by the respondent-Corporation by denying material averments made in the plaint. While dismissing the suit, the learned Judge has disbelieved the case of the appellants that the suit structure existed before the datum line i.e. 1st April 1962. 2 fa1941-ca576 3 By filing civil application no.576 of 2011 the appellants have made a prayer for production of additional evidence. The prayer is made seeking permission to produce old correspondence of the years 1954,1960 and true certified extract of city survey sheet. In paragraph 11 of the application, the reasons have been set out by the appellants as to why the said documents could not be produced during the course of trial despite the exercise of due diligence. 4 After having perused the averments made in the application no.576/2011, I find that a case is made out for permitting the appellants to adduce additional evidence by producing the documents annexed to the said application. However, the appellants will have to prove the said documents by producing the originals thereof. The respondent-Corporation must get an opportunity to meet the said additional evidence. 5 Instead of keeping the appeal pending in this Court, it will be in the interests of justice if the suit is remitted back to the trial Court with permission to the appellants to lead additional evidence in terms of the said application. 6 Hence, I pass the following order : i) Impugned Judgment and decree is quashed and set aside and the L.C.Suit no.2568 of 2004 is restored to the file of the trial Court. ii)Civil application no.576 of 2011 is allowed. The appellants are permitted to produce the documents in terms of the said application before the trial Court. It will open for the appellants to lead 3 fa1941-ca576 further oral evidence for proving the said documents. It is obvious that even the respondent- Corporation will be entitled to lead evidence by way of rebuttal. iii)After considering the evidence which is already adduced and the evidence which will be adduced after the order of remand, the suit shall be decided afresh. iv)The trial Court shall endeavour to decide the suit afresh by the end of August 2011. v) Interim relief which was operating during the pendency of the suit is also restored. vi)The appeal is partly allowed on above terms. vii)Civil application no.127 of 2011 does not survive and the same is disposed of. JUDGE