-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION. CIVIL APPELLATE JURISDICTION. CIVIL APPELLATE JURISDICTION. FIRST APPEAL NO.2258 OF 2006 1. Ali Umar Patel and ors, Appellants Vs The Municipal Corporation of Gr. Mumbai, Respondent Mr M.A.Patil, for the appellants. Mr J.J.Xavier, for the respondent. CORAM : D.B.BHOSALE,J. CORAM : D.B.BHOSALE,J. CORAM : D.B.BHOSALE,J. DATE : 28.11.2006 DATE : 28.11.2006 DATE : 28.11.2006 PC: PC: PC: 1. Heard the learned counsel for the parties. 2. This appeal is directed against the judgment and order dated 8.8.2006, rendered by the learned Judge, City Civil Court, Gr.Mumbai, by which a suit instituted by the appellants, has been dismissed. In the suit, the appellants had challenged the notice under section 351 of the Mumbai Municipal Corporation Act, 1888 (for short, "the Act") and prayed for injunction, restraining the respondent-Corporation from demolishing the construction of vertical extension of the original authorised premises, being room no.3 in Haji Ismail Mohammed Chawl, Gogate Wadi, Aarey Road, Goregaon (East), Mumbai-400 063 (the suit structure for short). 3. By the consent of the learned counsel for the parties, the appeal was heard for final disposal at the -2- stage of admission. Mr.Patil, learned counsel for the appellants, placed on record a compilation consisting of the pleadings and the evidence. With the assistance of the learned counsel for the parties, I perused the impugned judgment as also the other material placed for my consideration. 4. The case set up by the appellants was that the suit premises is a residential-cum-commercial premises and the whole structure exists since inception and they have not carried out any unauthorised construction as alleged by the respondent-Corporation. According to the Corporation, except the ground floor structure rest of the suit premises is unauthorised. To be more precise, according to the Corporation, the verticle extension of the original authorised structure made by the appellants is beyond the permissible height and was done without the consent of the landlord and their permission. The only contention urged by Mr.Patil, learned counsel for the appellants, was that the suit structure was in existence when the appellants came into possession thereof. He invited my attention to the documents and pleadings to contend that in any case the suit structure cannot be treated as unauthorised and it was made by the landlord. The appellants have not produced a single document on record to establish that the suit -3- structure was in existence since prior to their coming into possession and/or it was constructed with the permission of the Corporation. No approved plan/permission of the Corporation in respect of the suit structure, i.e. vertical extension, as mentioned in the notice, was produced on record. I perused the evidence of Shaikh Haji Ismail Mohammed (PW 2) and Rizwan Haji Ismail Mohammed (PW 3) which clearly demonstrate that the suit structure was constructed without permission of the Corporation. In the course of trial the appellants chose not to examine the landlord in support of their claim regarding the suit structure. Mr Patil, learned counsel for the appellants, in reply to my specific query, expressed his inability to produce any document in support of the appellants’ claim. I do not find any material on record in support of the appellants’ claim in respect of the suit structure. The learned counsel for the appellants did not raise any other contention. In the circumstances, the appeal stands dismissed in limine. 5. At this stage, Mr Patil, learned counsel for the appellants, prays for protection to the structure for a period of six weeks. Though Mr Xaiver, learned counsel for the respondent, opposed the prayer, I am inclined to grand six weeks protection. The respondent-Corporation -4- shall not demolish the suit structure for a period of six weeks from today. The dismissal of this appeal shall not preclude the appellants from making a representation to the Corporation seeking regularisation of the suit structure. If such a representation is made same may be considered in accordance with law. (D.B.BHOSALE,J.)