1 ao809.10.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION Appeal from Order No. 809 of 2010 Farid Abdul Latiff Noorani ...Appellant v/s. Municipal Corporation of Greater Mumbai ..Respondent Mr. Chirag Balsara i/b. Vivek B. Pandey for the appellant. Mrs. K.K. Soraan – BMC for the respondent. CORAM:- B.R. GAVAI, J DATED :- JANUARY 11, 2011. P.C. By way of present Appeal, the Appellant challenges the order dated 29th June, 2010 by which the Notice of Motion filed by the present Appellant came to be rejected. The Appellant has filed suit challenging the order dated 3rd December, 2008 passed on the basis of notice dated 5th August, 2008. In the said suit the notice of motion for injunction during the pendency of the suit was also filed. The same is rejected. Hence, the Appeal. 2 ao809.10.sxw 2. The Learned Counsel for the Appellant submits that the Appellant has made out the specific case that the first floor which is said to be unauthorised in the notice was in existence even prior to the date on which the Appellant entered into tenancy with his landlord. It is submitted that it is the specific case of the Appellant that he has not made any unauthorised construction. It is further submitted that it is also the specific case that the other structures adjoining the premises of the Appellant also stand at the same height. It is submitted that inspite of this position, the Learned trial Court without applying its mind has rejected the notice of motion. 3. The Learned Counsel for the Respondent Corporation vehemently opposes the Appeal. She submits that the Appellant ought to have produced some document to show that construction on the first floor was the authorised construction. She further submits that if the Appellant did not have the sanctioned plans in his possession, then he should have atleast issued the notice to the landlord and called upon him to produce the maps. She submits that the Assistant Municipal Commissioner has by elaborate reasoning passed the order impugned in the suit and as such no interference is warranted. 3 ao809.10.sxw 4. Perusal of pleadings would reveal that the Appellant has made specific case that he has not made any construction after he was put in possession after entering into tenancy with the landlord. It is also his specific case that other structures adjoining his structures are also standing at the same height and no action is being taken against them. The Learned Single Judge of this Court (Hon'ble Justice Lodha, as His Lordship then was) while considering the similar situation has observed thus: “The specific case set out by the notices in the reply was that he was tenant in room No. 1 situate on the first floor of a building at 3/5 Rippon Cross Lane, and that the tenancy had began about 4 years back. Now can a tenant who has been inducted somewhere in the year 1987-88 could produce any document to show the existence of the disputed structure prior to 1962. As a matter of fact, the Deputy Municipal Commissioner has not at all adverted to this vital statement made in the reply by the notices original Plaintiff and has not given any finding believing or disbelieving the stand taken by the notices that he was tenant of room no. 1 situate on the First Floor before 5 years of issuance of notice.” 5. I find that the facts in the present case are also identical with facts in AO No. 712/1996 decided by this Court on 19th June, 1996. In the present 4 ao809.10.sxw case also though it is a specific case of Appellant that the structure on the first floor was in existence prior to the date on which he entered into tenancy, the same has not been considered by the authority. Apart from that, there is an interim protection granted in favour of the Appellant. Apart from that it is to be noted that there was an ad-interim injunction in favour of the Appellants which was operative from inception of suit till disposal of motion. This Court also vide order dated 26th July, 2010 continued the interim protection granted earlier. 6. In that view of the matter, I find that the Appellant is entitled to interim protection during the pendency of the suit. 7. The Appeal, is therefore, disposed of with the direction to the parties to maintain status-quo as on the date of the filing of the suit, till disposal of the suit. The Learned trial Court is directed to expedite the hearing of the suit and decide the same as expeditiously as possible and in any case within a period of one year from today. 8. It is further made clear that Learned trial Court would not be influenced by the observations made by it while dismissing the motion and 5 ao809.10.sxw the same would be decided on its own merits in accordance with law. 9. In view of the disposal of Appeal, nothing survives for consideration in the Civil Application. The same is also disposed of. (B.R. GAVAI, J)