spb/- 1 28-10-ao1274-10.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE SIDE JURISDICTION APPEAL FROM ORDER NO. 1274 OF 2010 WITH CIVIL APPLICATION NO. 1571 OF 2010 IN A.O.NO.1274/2010 Chandulal Gangji Framewala & Ors. ... Appellants. Vs. Maharashtra Housing & Area Development Authority and Ors. ... Respondents. --- Shri J.M. D’Silva for the Appellants. Shri S.P. Thorat for the Respondent Nos.1 to 3. ----- CORAM : J. H. BHATIA, J. DATE : 28TH OCTOBER, 2010. P.C. 1 Heard learned counsel for the parties. 2 The appellants before this court are the original plaintiffs who are trustees of the Bombay Madvi Vrdhaman Tap Jain Ayambi Khatu Trust. The said trust is the owner of two suit buildings nos. 23/33-33A, Chapra Mansion situated at Rambhau Bhogle Marg, Mazgaon. According to the plaintiffs, the MHADA had given NOC in the year 1990 to the plaintiffs to carry out repairs to the suit property. According to the plaintiffs the dangerous portion of the wall above the roof in the Corporation premises was demolished in the year 1992. Even the partition wall on the second spb/- 2 28-10-ao1274-10.sxw and first floor was also demolished. In 1998 an Architect of the plaintiff had given assurance to the defendants that necessary repairs will be carried out. According to the defendant-MHADA, proper repairs were not carried out till the year 1998. The defendants-MHADA have appointed M/s. Raj Construction for carrying out repairs. However, the repairs by the MHADA are opposed by the plaintiffs on the ground that they have already carried out the necessary repairs to the suit buildings and if any more repairs are required they will be carried out. The plaintiffs have contended that as per the certificate dated 17th July, 2007 issued by the Structural Engineer, the building is in good condition and only some minor repairs, as suggested by the Structural Engineer were required to be carried out. According to him those repairs have been already carried out. The plaintiffs have also given undertaking by letter 22.04.2010 that whatever more repairs are required, they would be carried out by the plaintiffs and that the MHADA will not be held responsible for the safety of the same. 3 With these contentions, the plaintiffs filed the suit, restraining the defendants from dumping material on the suit property and from taking over the same for carrying out any repairs. By the notice of motion they sought temporary injunction of the same nature. spb/- 3 28-10-ao1274-10.sxw 4 MHADA resisted the notice of motion on the ground that the building is in dangerous condition. There are four shopkeepers who are carrying on their business in the said building and that some portion of the building is in occupation of the Police and therefore, if the building is not repaired by the MHADA, it will be dangerous to them. 5 The learned trial court after hearing the parties refused to grant temporary injunction and rejected the notice of motion. 6 After hearing the learned counsel for the parties and perusal of the record, it appears that prior to the present dispute, the MHADA had never taken any action for repairs of the suit building. On the contrary in the year 1992, the MHADA had given NOC to the plaintiffs to carry out the repairs. The plaintiffs have carried out the repairs from time to time. The report dated 17.07.2007 of the Structural Engineers, M/s. Strescon Consultants also reveals that the building is in good condition and only some minor repairs were suggested by the Structural Engineer, which according to the plaintiffs, are carried out by them. 7 The learned counsel for the plaintiffs also pointed out that out of spb/- 4 28-10-ao1274-10.sxw four shopkeepers, three shopkeepers have in fact filed a suit, restraining the plaintiffs from carrying out any repairs in the building as repairs are not necessary. In spite of that the plaintiffs have carried out the repairs. The trial court noted that at the time of the repairs, one labourer had fallen down and the matter was reported to the police and defendants and that the investigation was going on. This was treated as the circumstance against the plaintiffs. Falling of the worker while carrying out repair works may be an accident. That indicates that the plaintiffs had undertaken the repair works of the building. The report of the Structural Engineer of July, 2007 also shows that the building is in good condition and requires only minor repairs and such minor repairs have been undertaken by the plaintiffs. In view of this, the only statement made in the reply by the defendants that the building is in dangerous condition, without any certificate of any Structural Engineer, cannot be accepted. No certificate of any structural engineer has been produced by MHADA. Merely because the MHADA has already engaged some contractor and has agreed to spend Rs.25 lakhs for repairs, does not mean that the building is really in bad shape. In view of the above circumstances, I find that the order passed by the trial court needs to be interfered with. spb/- 5 28-10-ao1274-10.sxw 8 For the aforesaid reasons, the appeal is allowed. The impugned order is set aside. The Respondents are restrained from taking up repair works of the suit buildings subject to the condition that the plaintiffs shall complete all the repairs as may be suggested by MHADA within three months from today and thereafter, the Structural Engineer shall undertake inspection of the suit premises. If it is found that the repairs are not properly done, the defendants may move the trial court for further directions. 9 The trial court shall expedite the suit and dispose of the same preferably within one year. 10 As the Appeal itself is disposed of, the C.A. is does not survive and stands disposed of accordingly. [J.H. BHATIA, J.]