1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO. 452 OF 2009 IN B.C.C.C. SUIT NO. 1883 OF 2004 Mr.Balroop Gopinath Bajpai ... Appellant (Orig. Plaintiff) Vs. The Municipal Corporation of Greater Mumbai. Respondents (Orig.defendants) Mr. S.P.Srivastava,Advocate, for the appellant. Mr.Vinod Mahadik,Advocate for the respondents – BMC. CORAM: J.H.BHATIA,J. DATE: 6th August, 2009. P.C. 1. Heard the learned Counsel for the parties. 2. The learned Counsel for the plaintiff/appellant states that the plaintiff has been owner of the structure known as “Bajpai Chawl” since 1942-43. His father had taken the land on rent from the then owner N.J.Wadia Trust. Thereafter, the land was transferred by N.J.Wadia Trust to one Mr. Patel who became the owner and the landlord. The plaintiff has constructed the chawl consisting of 19 rooms,out of which 16 are in possession of tenants and 3 2 are occupied by the family of the plaintiff. The municipal Corporation started to issue patch photopasses to the tenants. This was objected to by the appellant and he filed the suit seeking perpetual injunction restraining the Corporation from issuing the photopasses on the ground that such photopasses could not be issued in favour of the tenants in the private property. The Municipal Corporation in the written statement had taken a plea that the property was acquired by the Government and it belongs to the Government and that the the plaintiff himself is encroacher. It was also contended that photopasses were issued as per Government policy. 3. The learned counsel for the appellant contends that the trial Court did not give opportunity to argue the case because the matter was fixed for arguments on 21.10.2008, but on that day due to certain disturbances in the City, the Advocate for the appellant could not reach the Court and the learned trial Court passed the impugned judgment dismissing the suit without hearing the arguments. 4. On perusal of the judgment, it appears that the trial Court has proceeded on assumption that the plaintiff is encroacher on the Government land. The trial court also proceeded on assumption that the photopasses were 3 being issued as per the Government policy. However, the documents in possession of the plaintiff to show that he is a tenant on the land, that he had constructed a building, that he was paying the taxes and that he was collecting rent from the tenants were not considered nor the trial Court considered the Government policy about issuance of photo passes nor there is any discussion in the judgment to show as to how the Government or the Municipal Corporation had become owner of the land or the structure thereon. Taking into consideration the circumstances, it appears that the trial Court has dismissed the suit without application of mind. 5. In view of the above circumstances, in the interest of justice, the impugned judgment and decree are hereby set aside. Suit No.1883 of 2004 is hereby remanded back to the City Civil Court, Mumbai, for hearing the parties. The appellant shall be permitted to implead the owner of the land as a defendant. The Municipal Corporation shall also be given opportunity to produce the documentary evidence about acquisition of this land as well as the Government policy in respect of issuance of the photo passes. The trial Court shall hear and dispose of the suit as per law within one year. The Appeal stands disposed of accordingly. 4 6. As the Appeal itself is disposed of, C.A. No.6049 of 2009 does not survive and stands disposed of accordingly. (J.H.BHATIA,J.)