VAJUBHAI D MAKWANE Vs. MUNICIPAL CORPORATION

JUDGEMENT

(1.) HEARD the respective advocates for the parties. The petitioner has moved this application in first appeal filed by the petitioner where the appellant-plaintiff has challenged the order of the learned Judge of City Civil Court Mumbai dtd. 30th September 1997, wherein the learned City Civil Court judge by common judgment, has dismissed all the suit. The present appeal is arising out of the judgment and decree passed in suit No. 3678 of 1985 the trial court while considering the evidence, has held that notices issued by the corporation dtd. 2nd May 1985 and 25th june 1985 under Sections 351 and 488 of the B. M. C. Act and consequently the orders dated 10th July 1991 are legal and held that plaintiff has failed to establish such declaration as sought for and also not entitled for injunction. The said judgment is under appeal and this court has admitted the first appeal and court has passed detail order while admitting the appeal on 17th December 1997. The court has directed the petitioner-appellant to pay royalty of Rs. 2000/- to the Court Receiver from January 1993 and continue to pay every month the sum of Rs. 2000a on or before 10th day of each month. The Court has further directed that the arrears from January 1993 to December 1997 be paid to the Court receiver within three months and ad interim relief in terms of prayer clause (b) was granted.

(2.) AFFIDAVIT in reply on behalf of respondent no. 2 dated 10th March 1998 was filed by agnes V. Dsouza giving details about the filing of the suit in the City Civil Court only against the Municipal Corporation and in the said suit, chamber Summons was taken out by her husband for being added as party-defendant to the suit. The challenge in the suit is in respect of notice issued under Section 351 of the b. M. C, Act and it is the case of the appellant that the suit structure was assessed under the assessment bill. It is the case of the respondent No. 2 and the corporation before the court that the structure which was assessed was totally different structure and not suit structure. It is also further found from the reply affidavit about the appointment of Court Receiver and his report dated 23rd October 1985. It is the case of the respondent that the petitioner has complied with the order passed by this Court while admitting the appeal as the petitioner has not paid the arrears from January 1993 to December 1997 which was ordered to be paid to the Receiver by granting the time for three months. Alongwith the affidavit dated 23. 4. 1998 filed by the applicant, he has produced the order dated 23. 9. 1996 passed in notice of Motion No. 1117 of 1993 in suit no. 1761 of 1993. An attempt is made to bring on record the fact mat at the time when the earlier order was passed, these facts were not brought on record nor the documents were produced before the Court. In order dated 23. 9. 1996 passed in Notice of Motion No. 1117 of 1993 in para No. 3 detail is given about the premises occupied by the tenant and the area occupied by the respective tenants as also rent amount. The sum of Rs. 300/- per month. is metioned by way of rent against the name of the petitioner.

(3.) DURING the hearing, the learned advocate appearing on behalf of the petitioner has submitted that these facts were not brought before the Court earlier and prayed that the amount of Rs. 2000a fixed by way of royalty is required to be reduced to the extent of Rs. 300/ -. He further submitted that it is beyond the capacity of the petitioner to pay the amount by way of royalty in favour of the Corut Receiver as fixed by this Court earlier at the rate of 2000/- per month. He has fairly admitted that the arrears amount as per the order, is not paid in favour of the Court Receiver and submitted that a reasonable time be given to make payment of arrears and petitioner will pay regularly royalty amount. He submitted that in fact the petitioner has paid regularly the amount of Rs. 2000/- from January 1998.