: 1 : USJ IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO.594 OF 2009 IN L.C.SUIT NO.3180 OF 2004 Pratap Chitru Bagdi .. Appellant V/s. B.M.C. & Ors. .. Respondents ..... Mr. A.M. Saraogi for the appellant Mr. J. Xavier for the respondent No.1 Mr. V.R. Tripathi for respondent Nos.2 to 4. ..... CORAM : R.Y. GANOO, J. DATE : 1st JULY, 2009. P.C. : 1. The appellant approached the City Civil Court by filing a suit bearing L.C. Suit No.3180 of 2004 with a prayer that structure which is constructed by respondent Nos.2 to 4 is unauthorized and that the Corporation should take steps to demolish it. The learned Judge of the City Civil Court by judgment and decree dated 17th January, 2009 dismissed the suit. Being aggrieved by the said judgment and decree the appellant has filed the present appeal. : 2 : 2. I have heard learned advocate Mr. Saraogi, Mr. Xavier and Mr. Tripathi for their respective parties. The appellant approached the Court with the positive case that structure has been constructed on the property and the same is unauthorized and therefore the same is required to be demolished. If this is the case, it was absolutely necessary for the appellant to state in precise terms as to what was that structure which was in the opinion of the appellant unauthorized. From the plaint, learned advocate Mr. Saraogi could not point out specific description of structure in regard to which the present suit came to be filed. Certain averments are set out in paragraph 8. They go to show that the appellant wanted to say that some efforts were made by respondent Nos.2 to 4 to put up some structure. However, those averments are not very specific as regards the description of the suit structure. If this is so, the institution of the suit was without proper averments and therefore the institution of the suit itself is defective in as much as there were no proper averments so as to decide the disputes between the parties. 3. Learned advocate Mr. Saraogi submitted that : 3 : certain documentary evidence was placed before the Court to show that structure is unauthorized. In the absence of proper description of the structure which is sought to be demolished, those documents by themselves cannot looked into to consider the case of appellant. The submission made by learned advocate Mr. Saraogi cannot be accepted. 4. The learned Judge has dismissed the suit observing that whether a structure should be demolished or not by the Corporation is to be decided by the Commissioner by exercising discretion conferred upon him by the statue and that the Court cannot direct the Commissioner to take a decision in that behalf. This view of the learned Judge is proper and to that extent no interference is required. 5. In the absence of proper description of the suit structure, the suit itself was not properly drafted. The Court cannot call upon the commissioner to positively perform a particular duty which requires him to use his discretion. : 4 : 6. In substance, there is no merit in the appeal and the same is required to be dismissed. In the fact and circumstances of the case, I am inclined to pass an order as regards costs namely the appellant will have to pay costs of Rs.1,000/- to respondent No.1 and Rs. 1,000/- to respondent Nos.2 to 4. Hence, the order. ORDER . The appeal is dismissed. Appellant to pay costs of Rs.1,000/- to respondent No.1 and Rs.1,000/- to respondent Nos. 2 to 4. . It is clarified that the costs is specifically ordered due to lack of description in the plaint in regard to which the suit is filed. Cost condition precedent for the future proceedings if initiated by the appellant in regard to the land covered by this appeal. . Civil Application No.1193 of 2009 is dismissed with no order as to costs in view of the disposal of the first appeal. (R.Y. Ganoo, J.)