1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO. 1340 OF 2008 FIRST APPEAL NO. 1340 OF 2008 FIRST APPEAL NO. 1340 OF 2008 WITH CIVIL APPLICATION NO. 3561 OF 2008 IN L.C.SUIT NO.6144 OF 2004 Kingston Co-operative Housing Society Ltd..Appellant (Orig.Defendant No.2) Versus Shri Subash Budhaji Navghare & Anr. ..Respondents (Orig.Plff.& Deft.No.1) Mr. V.R.Tripathi, Advocate i/b. Mr. M.J.Shetty, Advocate for the appellant. Mr. M.R. Irani, Advocate, for respondent No.1. Mr. J.J.Xavier, advocate or the B.M.C. CORAM: J.H.BHATIA, J. CORAM: J.H.BHATIA, J. CORAM: J.H.BHATIA, J. DATE: 22nd July, 2008. DATE: 22nd July, 2008. DATE: 22nd July, 2008. P.C. P.C. P.C. 1. Heard the learned Counsel for the parties. 2 2. Admittedly, on 12.6.2003, the Municipal Corporation had issued a notice under Section 351 of the Bombay Municipal Corporation Act to one Salvi in respect of unauthorised structure, which is allegedly standing on the property of the defendant NO.2 - Co-operative Society, which is the appellant before this Court. Notice was replied. On 14.12.2004,. tThe Municipal Corporation passed an order directing to demolish the structure within 15 days. Being aggrieved by that, the plaintiff No.1, who is respondent No.1 before this Court, filed L.C.Suit no.6144 of 2004 before the City Civil Court contending that the said order as well as notice are invalid. According to him, the structure is protected under law and it also falls in the slum area and therefore, the structure could not be demolished. With this contention, he sought relief of declaration and perpetual injunction. Defendant No.1 is the Municipal Corporation and the Society was defendant No.2. It claims to be the owner of the land on which the structure stands. On application of the Defendnt No.2, the Municipal Corporation had taken action contending that the structure was unauthorised and it was not protected by law. After hearing the parties, the trial Court decreed the suit and declared that the said notice as well as the order are malafide, bad in law and not enforceable against the plaintiff. The 3 Municipal Corporation was permanently restrained from enforcing the notice and order. Against that Judgment, the defendant No.2 - Co-operative Society has preferred the present Appeal. No appeal is preferred by the Municipal Corporation. 3. When this Appeal came up for admission, the learned Counsel for the appellant contended that as per the City Survey record, the disputed structure is shown in red colour, which indicates that this structure came up after the cut-off date of 1964 and therefore, it is not protected. He filed a certified true copy of the record from the City Survey Office. He also contended that the plaintiff No.1 had filed a copy of the said record wherein the structure was shown in black colour indicating that it was in existence since prior to 1964. He contended that the said copy of record was either false or the person who prepared it was not aware about the implications of showing the structure in black colour. Anyhow, according to him, the learned trial Court was misled by the record produced by the plaintiff. He concedes that the defendant had failed to produce the true certified copy of the record and this led the trial Court in passing the impugned decree in favour of the plaintiff. 4 4. It appears that on behalf of the Municipal Corporation, no documentary or oral evidence was produced. It appears that on behalf of the defendant no.2 - Society, number of adjournments were taken, but no evidence was led and the matter was postponed for judgment. At that stage, the Advocate for the defendant No.2 - Society moved a Notice of Motion seeking liberty to lead evidence, but because of the conduct of the Advocate in repeatedly telling the Court that he was not prepared, that Notice of Motion was rejected. 5. In view of the facts and circumstances noted above, and particularly in view of the certified true copy filed by the defendant No.2 /appellant before this Court indicating that the suit structure is shown in red colour and that indicates that the suit structure was constructed after 1964, while as per the document produced by the plaintiff before the trial Court, the structure appears to be constructed prior to 1964, in my considered opinion, it will be necessary to call the original record from the City Survey Office and to examine the competent officer from that office to prove the correct position. At the same time, it will also be necessary to give an opportunity to both the defendants to lead necessary evidence and to produce all the relevant documents. In view of these circumstances, the 5 learned Counsel for all the parties agreed that the impugned judgement may be set aside and the suit may be remanded back to the trial court so that the necessary opportunity may be given to all the parties and the matter maybe decided afresh in the interest justice. 6. Therefore, the Appeal is allowed. The impugned Judgment is hereby set aside. The Suit No.6144 of 2004 is hereby remanded back to the trial Court with a direction to give an opportunity to the defendants to lead oral and documentary evidence and to offer the witnesses for cross-examination by the plaintiff. The defendants shall also call the concerned officer from the City Survey Office with the original record pertaining to the disputed structure as a witness before the Court so that the plaintiff may get an opportunity to cross-examine him. 7. The parties shall appear before the concerned trial Court on 18.8.2008 and the learned trial Court shall fix the date for production of documents as well as the list of witnesses for all the parties. After the production of documents and the list of witnesses, the Court shall fix the date for recording of evidence and hearing of the matter. The plaintiff has already completed evidence. However, if he so desires, he maybe 6 permitted to lead additional evidence. It appears that the advocate on record for the defendant No.2 had not co-operated before the trial Court. Therefore, the trial Court shall not give any adjournment unless it is absolutely necessary in the interest of justice. The trial Court shall try to expedite and dispose of the matter by the end of December,2008. 8. Till the decision of the suit by the trial Court, the Municipal Corporation shall not take any action against the disputed structure. 9. All contentions of the parties are left open. 10. As the Appeal itself is disposed of, the Civil Application does not survive and stands disposed of accordingly. Certified copy expedited. (J.H.BHATIA,J.) (J.H.BHATIA,J.) (J.H.BHATIA,J.) 7