: 1 : vss IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO.1653 OF 2008 Ramprasad Sukhdev Pasi ... Appellant V/s. MMC & Anr. ... Respondents Mr.Digvijay Singyh i/b R.B. Singh for Appellant Mr.J.J. Xavier for Respondent Corporation CORAM: SMT.NISHITA MHATRE, J. DATED: MARCH 18, 2010 P.C.: 1) The First Appeal has been preferred against the judgment and order of the City Civil Court, Dindoshi dated 26.4.2008. By this judgment, the City Civil Court has dismissed the suit filed by the appellant. 2) The appellant was issued a notice u/s 351 of the Mumbai Municipal Corporation Act on 3.10.2001. This notice mentioned that the appellant had constructed an unauthorised structure with GI sheet walls and AC roof. The dimensions of the structure were also mentioned. It was the contention of the appellant in his plaint that the structure was in existence since 1976. It was also contended in the plaint that as per the “circular dated 1.1.1996” the structure is a tolerated structure. : 2 : 3) The respondent society in its written statement had contended that the structure had been demolished twice and that the plaintiff had reconstructed the structure. The society also mentioned that it was difficult for the fire brigade to approach the society in the event of any mishap occurring in the premises of the society. 4) The trial Court, rather than framing issues regarding the legality of the structure and the notice issued u/s 351 and the order passed by the Corporation, has framed issues which do not decide the controversy in the matter. In these circumstances, the trial Court has completely misdirected itself while deciding the suit. The issues which were required to be framed and answered have not been framed. Instead, the trial Court has considered issues which do not decide whether the structure is authorised or whether the order passed on the notice issued u/s 351 is correct. 5) It is true that the Corporation has not filed its written statement. However, this cannot lead to an inference that the appellant has managed to prove his case as suggested by the learned advocate for the appellant. 6) In my view, therefore, it would be appropriate to set aside the impugned judgment in view of the wrong issues being framed. 7) Accordingly, the appeal is disposed of in the following terms: : 3 : i) Appeal is allowed. ii) The judgment and order of the City Civil Court dated 22.4.2008 is set aside. iii) The matter is remanded to the City Civil Court, Dindoshi for a fresh trial. iv) The parties will appear before the City Civil Court, Dindoshi on 5.4.2010 for further directions. v) The Corporation will file its written statement on that date which shall be accepted. vi) The City Civil Court will reframe the issues in accordance with the pleadings. vii) The structure shall not be demolished during the pendency of the suit. viii) The suit shall be disposed of within one year from today. ****