vks IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO.514 OF 2014 WITH CIVIL APPLICATION NO.601 OF 2014 WITH CIVIL APPLICATION NO.403 OF 2016 IN APPEAL FROM ORDER NO.514 OF 2014

1. M/s Rasraj Restaurant, ]

A partnership firm having its ] registered office at Bharat Bhavan ] K.D. Road, Ville Parle (West) ] Mumbai 400 056 ]

]

2. Mr. Mullur Deju Shetty ]

age: 85 years, Occupation : Business, ] Appellants residing at : Vijayraj Building, Link Road, ] Original Khar West, Mumbai 400 05 ] Plaintiffs.

]

3.Mr. Shrinivas Sunder Shetty ]

age: 45 years, occupation: Business ] residing at: 518, Jehangir Mansion ] H.R. Mahajani Marg, ] Matunga East Mumbai 400 019 ]

V/s.

1. Municipal Corporation of Greater ]

Mumbai ]

]

2. The Designated Officer K/W4 ]

and Assistant Engineer ] (Building & Factories) Department, ] Municipal Corporation of Greater ] Mumbai having its office at “K” West Ward ] Ward Office, Paliram Marg, Andher (West) ] Mumbai 400 058 ]

] Respondents

3. Mrs. Vimla Shyamsundar Vyas ] Original age: 72 years, Occn.Housewife ] defendants.

flat No.11, 2nd floor, Bharat Bhavan ] Bharat Bhavan, K.D. Road, Ville Parle ] (West), Mumbai 400 056 ]

]

4. Mr. Dinesh Shyamsundar Vyas ]

age: 50 years, Occn.Service. ] flat No.11, 2nd floor, Bharat Bhavan ] Bharat Bhavan, K.D. Road, Ville Parle ] (West), Mumbai 400 056 ]

]

Mr. Ashok Pande a/w Ms. Prachi Tatake, for the appellants.

Mr. Narendra V. Walawalkar, Senior Council a/w Mrs.

Madhuri More, for respondent Nos. 1 & 2.

Mr.Mayur Khandeparkar a/w Ms. Jayashri Manjrekar a/w Mr. Vikhil Dhoka a/w Ms. Shyli Shetty i/by Solicislex , for respondent Nos. 3 & 4.

CORAM : DR.SHALINI PHANSALKAR-JOSHI, J.

RESERVED ON : 11^th SEPTEMBER, 2018. PRONOUNCED ON : 28th SEPTEMBER, 2018 JUDGMENT

1] Heard learned counsel for the appellant, learned Senior Counsel for the respondent-corporation and learned counsel for respondent Nos. 2 & 3.

2] Admit.

3] With the consent of learned counsel for both the parties, this Appeal is taken up for final hearing at the stage of admission itself.

4] This appeal takes an exception to the order dated 22^nd April, 2014, passed by the City Civil Court, Dindoshi, Borivali Division, Mumbai, thereby dismissing the Notice of Motion No.362 of

2014 filed in L.C. Suit No.337 of 2014.

5] The said Notice of Motion was taken out by the appellant, seeking the relief of interim injunction, restraining the respondent Municipal Corporation from taking any action, much less that of demolition of the suit structure, in pursuance of the Notice dated 5.10.2013, and the order dated 30.01.2014, passed under Section 351 of the Mumbai Municipal Corporation Act, 1888, (for short, called as, “MMC Act”).

6] The case of the appellants is that they are in possession of the ground floor premises of the building known as “Bharat Bhavan”, situated at K.D. Road, Ville Pargel, Mumbai. Mr. Bharat Vyas was the original owner and respondent Nos.3 and 4 are the present owners- landlords of the suit premises. Initially these premises, consisting of five shops with open space in front thereof, were let out to M/s Patel Syndicate. The total area thereof is admeasuring 269.84 sq meters. M/s Patel Syndicate was using the said premises for running restaurant in the name and style as, “Rasraj”.

7] Since June, 1966, one Mr. N. Muddu Shetty became the tenant of the said restaurant, after taking over the same from its earlier tenant M/s Patel Syndicate. In the year 1972 Mr. M. Muddu Shetty became the joint owner of this Rasraj Restaurant. The then landlord, that is Shyamsundar Bharat Vyas had accepted him as tenant in respect of the suit premises. The rent bill and the electricity bill of the said restaurant, however, continued in the name of M/s Patel Syndicate till they were transferred in the name of Rasraj Restaurant, in the year 2002. At present M/s Rasraj Restaurant is a partnership firm of which appellant Nos. 2 and 3 are the partners and are in lawful possession thereof as tenant. The certificate under Shop and Establ