sr.1-fa-401-2003.doc

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

FIRST APPEAL NO. 401 OF 2003

Abhay M. Divekar .. Appellant

Versus

Municipal Corp. of Gr. Bombay & Ors. .. Respondents

Adv. S. S. Gokhale for the Appellant.

Adv. Pallavi Khale i/b Adv. Komal Punjabi for the Respondent-BMC.

CORAM: FIRDOSH P. POONIWALLA, J.

RESERVED ON: OCTOBER 16, 2025

PRONOUNCED ON :JUNE 9, 2026

P. C.

1. This First Appeal challenges the Judgement and Decree dated 16

th

January, 2003 passed by the City Civil Court at Bombay in L.C. Suit No. 6952

of 1996.

FACTS

2. In this Judgement, the Appellant will be referred to as the Plaintiff

and Respondent No.1 will be referred to as “the BMC”.

3. The Plaintiff is in use, occupation, enjoyment and possession of

premises situated at first floor, Manu Mahal, 471-C, King’s Circle, Matunga,

Mumbai- 19 (hereinafter referred to as “the suit premises”). The Plaintiff’s

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TRUSHA

TUSHAR

MOHITE

Digitally signed

by TRUSHA

TUSHAR MOHITE

Date: 2026.06.09

18:07:03 +0530

sr.1-fa-401-2003.doc

father had been residing at the suit premises since the year 1940 till 1982.

The Plaintiff was born in 1948 and is living in the suit premises till date. The

Plaintiff is using the suit premises for his residential purpose and as a

hospital.

4. During a usual round of inspection, the officers of the BMC visited

the suit premises on 2

nd

November, 1996 and detected the unauthorised

covering of a common passage by providing two collapsible gates and one

wooden door. The officers of the BMC asked for the requisite permission to

the Plaintiff and after making inquiry in the vicinity as well as in the Building

and Factory Department learned that the Plaintiff had carried out

unauthorised construction without the permission of the BMC. They

accordingly prepared an Inspection Report and rough sketch and forwarded

the same to their superior officers. The same were in turn put up before the

Deputy Municipal Commissioner (Zone-II) for consideration and further

action. The Deputy Municipal Commissioner (Zone-II) after going through

Inspection Report and rough sketch,

prima facie came to the conclusion that

the Plaintiff’s work was unauthorised and accordingly issued a Notice under

Section 351 of the Mumbai Municipal Corporation Act, 1888 (hereinafter

referred to as “

the MMC Act”) to the Plaintiff. The said Notice was duly

served upon the Plaintiff.

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5. By the said Notice dated 22

nd

November, 1996, the Plaintiff was

informed that he had carried out unauthorised work i.e. unauthorised

covering of common passage by providing two collapsible gates and wooden

door without the permission of BMC and thereby was requested to show

sufficient cause in writing as to why the said work should not be pulled down.

The said Notice further requested the Plaintiff that if he was in possession of

any proof to show that the said work is not unauthorised, he should produce

the same. By the said Notice, the Plaintiff was further informed that, if he

failed to show cause within the stipulated period, the said work would be

removed or pulled down by the BMC at the risk and costs of the Plaintiff.

6. The Plaintiff replied to the said Notice dated 22

nd

November, 1996

by his letter dated 26

th

November, 1996. In the said reply, the Plaintiff

contended that the suit premises had been used as a maternity hospital and

hence, for safety, the Plaintiff had provided the gates and door, and further

requested the BMC that the Plaintiff’s reply should be treated as a Notice

under Section 527 of the MMC Act.

7. Along with the said reply, the Plaintiff annexed copies of rent

receipts, a copy of a plan and a deed of conveyance.

8. Thereafter, before the Deputy Municipal Commissioner could pass

an order of demolition, the Plaintiff filed the present Suit on 17

th

December,

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1996. The Bombay City Civil Court refused to grant any ad-interim injunction

to the Plaintiff.

9. Thereafter, the officers of BMC forwarded the Inspection Report,

the rough sketch, the documents produced by the Plaintiff, alongwith the

Plaintiff’s reply, to the superior officers of the BMC, and, in turn, the same

was put up before the Deputy Municipal Commissioner (Zone-II) for

consideration and further action. The Deputy Municipal Commissioner

(Zone-II), after considering the reply and the documents produced by the

Plaintiff, and after going through the office records, passed a reasoned and

speaking order of demolition dated 20

th

December, 1996. The said Order was

duly served upon the Plaintiff. The said Order informed the Plaintiff that the

reply and documents produced by the Plaintiff were considered by the BMC.

However, the documents produced by the Plaintiff did not prove the

authorisation or existence of the Noticed structures prior to the datum line.

By the said Order, the Plaintiff was directed to remove the said unauthorised

work within 7 days from the receipt of the said Order, failing which the

unauthorised work would be removed by the BMC at the risk and costs of the

Plaintiff.

10. The Plaintiff again approached the City Civil Court, and by an Order

dated 4

th

July , 2000, the City Civil Court referred the matter to the Deputy

Municipal Commissioner for giving a personal hearing to the Plaintiff and to

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pass an order and communicate the same to the Plaintiff, and till that date

not to take action against the Plaintiff.

11. As per the directions given by the Bombay City Civil Court, the BMC

fixed personal hearings on 18

th

March 2000, 29

th

April 2000, and finally the

matter was heard on 22

nd

September, 2000. At the time of personal hearing,

the Plaintiff was present before the Deputy Municipal Commissioner and the

Assistant Engineer F/North Ward was also present on behalf of the BMC. The

Deputy Municipal Commissioner gave a hearing to the Plaintiff, and,

thereafter, passed an Order that the Plaintiff should either approach the

Building Proposal Department of the BMC for regularising the unauthorised

construction or remove the unauthorised construction within 15 days.

Further, the said Order directed that, on receiving the Application, the

Building Proposal Department should finalise and dispose of the Application

within 15 days from the date of the Application. The said Order also provided

that, if no Application was made, the Assistant Municipal Commissioner

F/North ward should remove the unauthorised construction.

12. Thereafter, the Plaintiff made an Application for regularising the

Noticed structures to the Assistant Engineer (Building and Proposal

Department). However, after considering the documents and Application

filed by the Plaintiff, the Plaintiff’s Application for regularisation was not

accepted as the Plaintiff had not complied with the requisitions of the BMC.

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13. In the present Suit filed by the Plaintiff, the BMC filed a Written

Statement only on 23

rd

October, 2002, after the evidence of the Plaintiff, and

therefore, the Plaintiff was again allowed to lead evidence.

14. The following issues were framed in the Suit by the Bombay City

Civil Court.

“Issues

1. Whether Plaintiff proves that he or through his father the flat

has been used for residential and also for hospital purpose from

1940?

2. Whether Plaintiff proves that the action of Corporation in

issuing notice dt. 22.11.1996 u/s. 351 of B.M.C. Act, is illegal

and bad.

3. Whether Plaintiff is entitled for injunction as prayed for?

4. Whether the suit is maintainable for want of statutory notice

u/s. 527 of B.M.C. Act?

5. What Order and Decree?”

15. In the Suit, the Plaintiff led his own oral evidence. The BMC led the

evidence of one Ravindra Bhagaji Ghule, the Sub-Engineer of the EEBPT

Department of BMC, and of Rajesh Sitaram Patil the Junior Engineer

working in the Storm Water Drains Department (SWD) of the BMC. The

Plaintiff and the BMC also tendered documents in evidence.

16. By a Judgement dated 16

th

January, 2003, the Bombay City Civil

Court passed the following Order :

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“ORDER

(1) Suit is partly decreed as under.

(2) The Corporation shall not remove the 2

collapsible gates put at first floor of the premises

concerning Flat Nos. 4,5, 6 and7. However,

Corporation is at liberty to remove the wooden door

or doors covering the passage. The Plaintiff shall not

obstruct by perpetually closing these gates and shall

not use passage for human habitation. No costs.

Suit is dismissed against Defendant Nos. 2 and 3.”

POINTS FOR DETERMINATION

17. By the impugned Judgement and Order dated 16

th

January 2003,

the Court has directed BMC not to remove the two collapsible gates at the

Suit Premises but has given BMC the liberty to remove the wooden door

covering the passage. BMC has not filed an Appeal against the said

Judgement and Decree dated 16

th

January, 2003. Therefore, the Judgement

and Order dated 16

th

January, 2003 has become final in so far as the two

collapsible gates are concerned. In these circumstances, the following point

arises for determination of this Court.

a) Whether the Trial Court was right in holding that the BMC is at

liberty to remove the wooden doors covering the passage and by

directing the Plaintiff not to obstruct by perpetually closing the

gates and not to use the passage for human habitation?

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SUBMISSIONS OF THE APPELLANT (PLAINTIFF)

18. Ms. S.S. Gokhale, the learned Advocate appearing on behalf of the

Plaintiff, referred to the Agreement dated 28

th

March, 1962 entered into

between the BMC and the landlord permitting change of user along with the

map attached thereto. Ms. Gokhale also referred to a copy of the letter dated

17

th

October, 2001 issued by BMC and the licence plan attached thereto. Ms.

Gokhale submitted that the said documents did not state that there were any

common passages as contended by the BMC and as held by the Trial Court.

Ms. Gokhale contended that there was no challenge to the said agreement or

the plan and, therefore, it must be accepted that there were no common

passages and the wooden door was not obstructing any common passage.

19. Further, Ms. Gokhale referred to the impugned Judge ment and

submitted that the impugned Judgement talks of other occupants when there

are no other occupants in the Suit Premises.

20. Further, Ms. Gokhale submitted that the impugned Judgement does

not deal with the basic documents which clearly showed that there was no

common passages.

21. Further, Ms. Gokhale referred to a Circular No. HC/43 (1968-69) of

the BMC and, in particular to paragraph 6, thereof which stated that

unauthorised residential and non-residential structures constructed and

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existing prior to 17

th

April 1964 and 1

st

April, 1962 need not be demolished.

Ms. Gokhale submitted that, by virtue of the provisions of this Circular also,

the wooden gate ought not to be demolished.

22. In support of her submissions, Ms. Gokhale relie d upon the

following Judgements :

a) Judgement of this Court in Maneklal N. Shah alias Kothari Vs.

Municipal Corporation of Greater Bombay 2014 (2) Mh.L.J 341,

b) Judgement of this Court in Bilkishbai Moizbhai Vasi & Anr. Vs.

Municipal Corporation for Greater Bombay (Writ Petition No.

1286/1980) and c) Judgement of this Court in Bhujanga Abba Patil

(since deceased) through his legal heirs Smt. Bay Anabai Bhujanga

Patil & ors. Vs. Dnyanu Ramchandra Powar 2017(1) Maharashtra

Law Journal 2013.

23. In conclusion, Ms. Gokhale submitted that this Court be pleased to

allow the present Appeal

SUBMISSION OF RESPONDENT NO.1 (BMC)

24. Ms. Pallavi Khale, the learned Advocate appearing on behalf of the

BMC, submitted that the wooden door constructed by the Plain tiff

encroached the common passage, thereby encroaching the rights of other

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Respondents and visitors. Ms. Khale submitted that the said door was

constructed without seeking any permission from the BMC and therefore

ought to be demolished.

25. Ms. Khale submitted that the Plaintiff has admitted in his evidence

that the wooden door was constructed only 15 to 20 years back and therefore

the Circular referred to by the Plaintiff was not applicable.

26. Ms. Khale submitted that the fact, that the Plaintiff submitted a

regularisation proposal, showed that the said wooden door was not an

authorised structure. In this context, Ms. Khale referred to the evidence of

the Plaintiff and that of the witness of the BMC. Ms. Khale further submitted

that this regularisation proposal of the Plaintiff had also been rejected as the

Plaintiff had failed to provide the requisite information and documents.

27. In support of her submissions, Ms. Khale relied upon the

Judgement of the Hon’ble Supreme Court in Seema Arshad Zaheer Vs.

Municipal Corporation of Gr. Mumbai (in Special Leave Petition (Civil) No.

9479/2005) and to the decision of this Court in Tushar Guru Salien Vs. State

of Maharashtra (PIL NO. 67/2017).

28. In conclusion, Ms. Khale submitted that, for all the aforesaid

reasons, the present Appeal ought to be dismissed.

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ANALYSIS AND FINDINGS

29. The question that falls for consideration of this Court is whether the

Trial Court was right in holding that the BMC is at liberty to remove the

wooden door covering the passage and by directing the Plaintiff not to

obstruct by perpetually closing the gates and not to use the passage for

human habitation.

30. As far as the wooden door is concerned, the Plaintiff has not

produced any document to show that same was authorised by the BMC.

31. The Plaintiff has relied upon an Agreement dated 28

th

March, 1962

between the BMC and the landlord permitting change of user. It is the case of

the Plaintiff that the same does not show any passage, and, therefore, the

question, of the wooden door blocking any passage, does not arise. However

it is important to note that the said Agreement also does not refer to any

wooden door. Further, the License Plan annexed to the letter dated 17

th

October, 2001 relied upon by the Plaintiff also does not show any wooden

door. In fact, the License Plan shows a common passage.

32. Further the fact, that the wooden door is not author ised, is

demonstrated by the fact that the Plaintiff made an application for

regularisation of the same. Further, the said application was rejected as the

Plaintiff had not complied with the requirements of BMC. In this context, the

BMC’s witness, Ravindra Ghule, has deposed that the office of the BMC had

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received the regularisation proposal from the architect of the Plaintiff. The

said proposal was for regularisation of enclosure of the passage. The said

proposal was considered by the higher authority and BMC had issued a

requisition letter to the architect on 17

th

April, 2001 signed by the Assistant

Engineer Building Proposal (City). Further, Mr. Ravindra Ghule deposed that

due to non-compliance of the requisition, the proposal was recorded on 4

th

October, 2001 (i.e. rejected ) and the same was communicated to the

architect of the Plaintiff and also to Shah Nursing Home of the Plaintiff. Mr.

Ravindra Ghule also deposed that the map which was submitted by the

Plaintiff clearly indicated that, by the proposed closure of the passage, light

and air to the stair case would be hampered.

33. Further, as far as the Circular relied upon by the Plaintiff is

concerned, paragraph 6 of the said Circular reads as under :

“6. Unauthorized residential and non-residential structure

constructed and existing prior to 17

th

April, 1964 and 1

st

April,

1962, resp. need not be demolished even if action, under

sanction of the S.C.

obtained to carry out demolition unless action is required to be

taken under the later part of para 2.”

34. The Circular shows that a residential structure existing prior to 17

th

April, 1964 and a non-residential structure existing prior to 1

st

April, 1962 is

protected. However, in the present case, the Plaintiff has deposed in his

Examination-in-Chief on 10

th

October, 2002 that the wooden door has been

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in existence since more than 15 to 20 years. Therefore, as per the Plaintiff’s

own deposition, the wooden door could not have been constructed earlier

than 1982. This clearly shows that the wooden door was constructed after the

datum lines of 17

th

April, 1964 and 1

st

April, 1962 and therefore the said

Circular does not apply to the case of the Plaintiff.

35. Further, as far as the submission of the Plaintiff that there is no

common passage is concerned, as stated earlier, the witness of BMC,

Ravindra Ghule, has stated that the map which was submitted by the Plaintiff

for regularisation clearly indicated that by the proposed closure of the

passage, the light and air to the staircase would be hampered. This shows the

existence of a passage.

36. Further, the second witness of the BMC, Mr. Rajesh Pa til, has

deposed that, on 2

nd

November, 1996, when he had visited the suit premises,

he had noticed that, on the first floor, at two places, the common passage was

closed by putting two collapsible gates, and one wooden door. He had

prepared an Inspection Report under his signature and it was put up before

the Assistant Engineer for comments. In the cross-examination of Mr. Rajesh

Patil, the said statement was not challenged. This clearly shows that there did

exist a common passage and the wooden door blocked the same.

37. In the light of the aforesaid reasons, the impugned Judgement

correctly permits the BMC to remove the wooden doors or doors covering the

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passage and further directs the Plaintiff not to obstruct by perpetually closing

these gates and not to use this passage for human habitation. In these

circumstances, I am not inclined to interfere with the said Judgement dated

16

th

January, 2003 of the Trial Court.

38. In this context, it would be appropriate to refer to the Judgements

relied upon by Ms. Khale on behalf of the BMC.

39. Ms. Khale referred to the Judgement of the Hon’ble Supreme Court

in Seema Arshad Zaheer (supra) and, in particular, to paragraph 30 thereof

wherein the Hon’ble Supreme Court has referred to certain observations in

MI Builders Pvt. Ltd. Vs. Radhey Shyam [1999 (6) SCC 464]. Paragraph 30

reads as under :

“30. It is true that in cases relating to orders for

demolition of buildings, irreparable loss may occur if

the structure is demolished even before trial, and an

opportunity to establish by evidence that the structure

was authorized and not illegal. In such cases, where

prima facie case is made out, the balance of

convenience tilts in favour of plaintiff and a

temprorary injunction will be issued to preserve status

quo. But where the plaintiffs do not make out a prima

facie case for grant of an injunction and the

documents produced clearly show that the structures

are unauthorized, the court may not grant a temporary

injunction merely on the ground of sympathy or

hardship. To grant a temporary injunction, where the

structure is clearly unauthorized and the final order

passed by the Commissioner (of the Corporation)

after considering the entire material directing

demolition, is not shown to suffer from any infirmity,

would be to encourage and perpetuate an illegality.

We may refer to the following observations of this

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Court in M.I. Builders Pvt. Ltd. v. Radhey Shyam

Sahu [1999 (6) SCC 464] made in a different context:

"This Court in numerous decisions has held

that no consideration should be shown to the

builder or any other person where

construction is unauthorized. This dicta is

now almost bordering the rule of law. Stress

was laid by the appellant and the

prospective allottees of the shops to exercise

judicial discretion in moulding the relief.

Such a discretion cannot be exercised which

encourages illegality or perpetuates an

illegality. Unauthorised construction, if it is

illegal and cannot be compounded, has to be

demolished. There is no way out. Judicial

discretion cannot be guided by expediency.

Courts are not free from statutory fetters.

Justice is to be rendered in accordance with

law. Judges are not entitled to exercise

discretion wearing the robes of judicial

discretion and pass orders based solely on

their personal predilections and peculiar

dispositions. Judicial discretion wherever it

is requires to be exercised has to be in

accordance with law and set legal

principles.”

40. In my view this Judgement clearly shows that the wood en door

constructed by the Plaintiff, which is unauthorised, must be demolished.

41. Ms. Khale then referred to the decision of this Court in

Tushar Guru

Salien (supra). Paragraph 5 of the said Judgement is relevant and reads as

under :

“5) Concerning a property, a suit to enforce or

protect an interest in the property which is governed

by a Municipal Statute, the interest protected has to

be with respect to a plea that prima-facie, the

structure which is being targeted is an authorized

structure. Meaning thereby, the plaint must make an

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averment of the sanction obtained from the

Corporation and must make an averment that the

structure targeted is prima-facie governed by the

sanction. Merely pointing out deficiencies in the

notice or the authority of the person issuing the notice

is neither here nor there. Thus, the sine qua non of

such kinds of suits is a positive assertion made with

reference to the sanctioned building plans.”

42. The said decision clearly lays down that in a Suit re garding

construction, in respect of which notice has been issued by a statutory

authority like the BMC, the Plaintiff must show that the structure in question

is authorised. In the present case, the Plaintiff has not shown that the

structure in question is authorised. On the contrary, as stated herein above,

the Plaintiff had applied for regularisation of the structure, which was

rejected.

43. I will now deal with the Judgements relied upon by Ms. Gokhale in

support of the Plaintiff’s case. The first Judgement relied upon by Ms.

Gokhale is

Maneklal N. Shah (supra). Ms. Gokhale referred to paragraph 3 of

the Judgement which reads as under :

3. It is true that if structure is constructed without any

written permission from the Municipal Corporation

or without any sanctioned plan, it is termed as

"unauthorized or illegal construction." However,

premises in possession of tenants, if they are having

existence since years, and tenant is able to show long

standing existence of the suit premises since prior to

predatum line, in accordance with policy decisions

and circulars of Municipal Corporation, the decision

making authority of Municipal Corporation is

required to pass a reasoned order by considering the

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documents produced by the noticee as to whether

structure described in the notice is capable of being

regularized or whether it is tolerable in accordance

with prevalent circulars, and decisions of Municipal

Corporation. Therefore, considering the evidence led

in this case, that plaintiff / appellant had also

received notice long back in the year 1975, and

assuming that the structure is in open space and if it

is on private land and capable of being regularized

for the time being, decision making authority on

behalf of the Municipal Corporation can surely

consider as to whether the suit structure can be

tolerated for the time being, until owner / landlord

would follow due process of law for eviction of the

tenant.

44. The said Judgement holds that if a tenant is able to show long

standing existence of the premises since prior to the datum line, in

accordance with its policy decisions and circulars, the Municipal Corporation

is required to pass a reasoned order by considering the documents produced

by the noticee as to whether the structure described in the Notice is capable

of being regularised or whether it is tolerable in accordance with the

prevalent circulars and decisions of the Municipal Corporation.

45. What is held in this Judgement does not come to the aid of the

Plaintiff. The first reason is that, as accepted by the Plaintiff in his evidence,

the wooden door has been constructed much after the datum line. Further

despite the same, the BMC had considered the Plaintiff’s application for

regularisation and had rejected the same as the Plaintiff did not produce the

requisite information and documents.

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46. The second Judgement relied upon by Ms. Gokhale i s the

Judgement in Bilkishbai Moizbhai Vasi (supra) . The relevant portion of the

said Judgement reads as under :

“ Section 351 obliges the Municipal Commissioner, if the

construction of any building or the execution of any work is

commenced contrary to the provisions of the Act, to give notice

requiring the person constructing or doing the work to show

cause why it should not be pulled down. The word used in this

context is "shall". If sufficient cause is not shown, the

Commissioner "may" remove, alter or pull down the building or

work. It is left to the Commissioner's discretion whether or not

to demolish the unauthorised construction if sufficient cause is

not shown. The court cannot impede the exercise of that

discretion by the issuance of a mandatory order.

The dispute is between the petitioners as landlords and those

who have constructed the structures or are occupying them. It is

a purely private dispute for which the petitioners must seek

redress by way of a civil suit. They cannot be provided with the

machinery of the 1

st

respondent to settle private scores.”

47. The said Judgement holds that it is left to the Commissioner’s

discretion whether or not to demolish the unauthorised construction, if

sufficient cause is not shown. It is further held that the Court cannot impede

the exercise of that discretion by the issuance of a mandatory order. In the

present case, the Commissioner, after giving an opportunity to the Plaintiff to

regularise the structure, has not regularised the structure as the Plaintiff

failed to produce the requisite information and documents. Therefore this

Judgement does not take the case of the Plaintiff any further. Further, in the

said Judgement, the Court has held that the machinery of the BMC cannot be

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provided to settle private disputes between tenants and landlords. In the

present case, the BMC has taken action against the Plaintiff as the said

wooden door is unauthorised. The Plaintiff had even made an application to

the BMC for regularisation of the said wooden door, but the same was

rejected as the Plaintiff had not provided the requisite information and

documents. In these circumstances, this is a dispute between the BMC and

the Plaintiff and not a private dispute. For this reason also, the said

Judgement does not take the case of the Plaintiff any further.

48. The last Judgement relied upon by Ms. Gokhale is the Judgement in

Bhujanga Abba Patil (supra). Ms. Gokhale relied upon the head note of the

said Judgement which reads as under :

“Since the area of the plot agreed to be sold to the

defendants by the erstwhile owner was clearly

mentioned in the sale deed which was duly admitted

and confirmed by the erstwhile owner of the said land

himself and also admitted and confirmed by the

witnesses examined by the defendants, reference to

the boundaries of the plot mentioned in the sale deed

as conclusive by the first Appellate Court is totally

perverse and illegal. Since specific area of the land

was sold by the erstwhile owner to the defendants

which was specifically mentioned in the sale deed,

the finding/observation of the first Appellate Court

that the boundaries would prevail is ex facie perverse.

The boundaries or the area mentioned in the sale deed

entered into between the defendants and the erstwhile

owner of the said property would not prevail over the

area mentioned in the sale deed in view of the exact

area of property sold having been clearly mentioned

in the sale deed. Since the first Appellate Court had

not dealt with and considered the oral and

documentary evidence led by the parties in the right

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perspective and has on the other hand decided ex

facie contrary to the documents and oral evidence and

has rendered various findings which are ex facie

perverse, such perverse findings can be interfered

with by exercising powers under section 100 of the

Code of Civil Procedure, 1908. 2007(6) Mh.L.J.

(S.C.) 336 and (1983) 2 MLJ 340 (Madras), Rel.

(Paras 37 to 48).”

49. In my view, the said Judgement is totally irrelevant as far as the

present case is concerned, and does not take the case of the Plaintiff any

further.

50. For all the aforesaid reasons, the Point for Determination is

answered in the affirmative i.e. against the Plaintiff.

51. For all the aforesaid reasons, the present Appeal is required to be

dismissed.

ORDER

In light of the above discussion and for the aforesaid reasons, the

following Order is passed :

A) The Appeal is dismissed.

B) In the facts and circumstances of the case, there will be no order

as to costs.

[FIRDOSH P. POONIWALLA, J.]

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