: 1 : 1612-11-FA=.sxw UJ IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO. 1612 OF 2011 IN L. C. SUIT NO. 2299 OF 2008 WITH CIVIL APPLICATION NO. 3498 OF 2011 Gulam Hussain Usman Ansari .. Appellant v/s. The Municipal Corporation of Greater Mumbai .. Respondents ......... Ms. B.P. Shukla for the appellant Mr. Vinod Mahadik for respondents ......... CORAM : A.V. NIRGUDE, J DATE : 23rd NOVEMBER,2011. P.C. : 1. This is heard at the stage of admission finally. R & P is also perused. This appeal is filed against the Judgment and Order dated 12th July, 2011 passed by the learned Judge, City Civil Court, Bombay in L.C. Suit No.2299 of 2008 which was filed by the appellant. The suit was filed for declaration and perpetual injunction in respect of the structure admeasuring 30 x 17 sq.feet situate at CTS No.532 at Village Esar etc. The : 2 : 1612-11-FA=.sxw plaintiff received a notice under Section 351 of the Mumbai Municipal Corporation Act alleging that the suit structure is newly constructed and is unauthorized. The appellant submitted reply and stated that the suit structure is recently repaired and and is part of old structure which was censused some time in 1976 in is fathers name. He produced on record the occupiers card issued by the Deputy Collector under the provisions of Maharashtra Slum Area (Improvement, Clearance and Redevelopment) Act 1971. It is the case of the appellant that the structure shown in the occupiers card is now repaired and is the suit structure. The Corporation rejected his representation on the ground that the occupiers card submitted by the appellant was censused and that the appellant had failed to submit the new occupiers card. There is no further discussion in the order on the representation made by the appellant. In view of the adverse order passed by the Officer of the Corporation, the appellant filed this appeal. Unfortunately the respondent defendant did not submit written statement. Despite of that, the learned Judge of the trial Court dismissed the suit holding that the appellant had failed to prove the genuineness of the occupiers card referred to above. 2. The learned Judge further observed that the Court su-moto sent this : 3 : 1612-11-FA=.sxw document for verification to the authorities concerned and received a report that the card was not genuine. However, the learned Judge in the judgment did not say as to whether this report is shown to the appellant plaintiff and whether he was given an opportunity to lead further evidence to prove the genuineness of the document. The document namely occupiers card produced on record by the appellant is quite an important document and, therefore, the learned Judge of the trial Court ought to have given sufficient opportunity to the appellant to prove his case. Disputes in case of this nature, it is always advisable to have written statement so that the learned Judge of the trial Court would get assistance from the defendant also. Such assistance is required to decide a case of this nature. It is pertinent question between the parties is whether the impugned structure is different than the censused structure and whether the censused structure censused by this occupiers card is in existence is in existence separately etc. All such questions ought to have decided that the help of the respondent defendant. In my view, the appeal should succeed but only for remand of the case back to the trial Court. The appeal is allowed. The impugned judgment and order is set aside. The case is remanded back to the lower Court where the respondent defendant shall file written statement within 4 weeks from the date of receipt of : 4 : 1612-11-FA=.sxw Record & Proceedings. The learned Judge shall then decide the case denovo. The order passed in favour of the appellant staying the effect of the impugned notice shall continue till disposal of the suit. (A.V. NIRGUDE, J.)