1ao-954-09 Ladda IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER No. 954 OF 2009 IN NOTICE OF MOTION No. 262 OF 2009 Mr Waman Ramchandra Madaye ..Appellant.(Orig.Plaintiff.) vs. Municipal Corporation of Gr.Mumbai ..Respondent.(Orig.Defendant) Mr Shreepad Murthy i/b Mr Jagdish N. Jayale , Advocate for the Appellant. Mr R. A.Malandkar, Advocate for the Respondent-B.M.C. CORAM:A.R.JOSHI,J DATED : 25TH SEPTEMBER,2009 P.C.:- 1. Rule, made returnable forthwith by consent of parties. 2. Mr R.A.Malandkar, the learned counsel appears for the Respondent-B.M.C.,and waives service. 3. Heard the learned counsel for the rival parties for some time. In the present A.O., what is challenged is the order dated 2ao-954-09 21.7.2009 passed by the City Civil Court, Dindoshi, Mumbai in notice of motion of the petitioner-plaintiff. By the said notice of motion it was prayed that the defendant-B.M.C., needs to be restrained from enforcing the notice dated 11.2.2009 issued under Section 351 of the Mumbai Municipal Corporation Act (M.M.C. Act for short) and the subsequent order passed thereon on 26th March,2009. According to the petitioner- plaintiff the said suit structure was in his possession and occupying since the year 1992 and which was initially taken by him from the son of one Abdul Hamid. According to the plaintiff, initially in the year 1960 said Abdul Hamid had acquired the said structure from original vendor by name Alimoddin Shaikh. During the arguments at the time of hearing of the notice of motion,before the City Civil Court much reliance was placed on the said original deed of assignment of 1992 and earlier agreement of January, 1960. Also, much emphasis was placed on the document - a notice u/s. 354 of the M.M.C.Act, dated 29.5.2002, addressed to the plaintiff by the respondent. Allegedly, according to the plaintiff, said notice was concerning the same suit structure and which is in respect of granting permission of repair. Though the said documents were produced for the purpose of hearing of notice of motion, admittedly, the said documents were not placed before the 3ao-954-09 B.M.C.,authority in answer to the notice dated 11.2.2009 issued under Section 351 of the M.M.C.Act. In fact, in answer to the said initial notice it is submitted by the plaintiff vide his reply dated 20.2.2009 that most of his documents were washed away because of heavy rain of 26.7.2005 and he is trying to reconstruct the documents. In fact, only six documents were placed before the Authority and same documents were referred by the B.M.C., in its order dated 26.3.2009 and apparently none of the said documents show as to authorization of the suit structure or same is in existence prior to 17.4.1964/1-1-1962 which is datum line fixed by the B.M.C., for the tolerating residential / commercial structure. 4. After going through the reasoning given by the City Civil Court, while rejecting the notice of motion of the plaintiff, all the said newly added documents were also dealt in detail and the reasoning has been given mainly emphasizing that the structure which is mentioned has no first floor and the address of the structure, allegedly the subject matter of the agreement of 1960 and Deed of Assignment of 1992, is different from address given in the impugned notice. Considering that there was no proof produced before the Municipal Authority as to the authenticity of the structure, by way of approved plans or otherwise, the circumstances did not necessitate this Court to interfere with the 4ao-954-09 impugned order. 5. In the result, Appeal from Order is dismissed and disposed of. Rule is discharged. In view of rejection of the prayers, directions are given to the Trial Court to deal with the main suit on priority without there being any time bound programme. (A.R.JOSHI,J)