[Cites 7, Cited by 0]
Bombay High Court
Municipal Corporaton Of Gr. Mumbai vs Seema Sharad Sagwekar on 25 March, 2026
2026:BHC-AS:14161
fa-768-2010.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FIRST APPEAL NO.768 OF 2010
IN
SUIT NO. 4267 OF 2004
AND
INTERIM APPLICATION NO.153 OF 2023
IN
FIRST APPEAL NO.768 OF 2010
Municipal Corporation of ]
Greater Mumbai ]
A body corporate having its office ]
at Mahapalika Marg, Fort, ]
Mumbai 400 001. ] .. Appellant.
v/s.
Seema Sharad Sagwekar ]
Indian Inhabitant of Mumbai, aged 37 ]
years, residing and carrying on business ]
of Ironing at a hut at Jijamata Nagar, ]
behind Building No.38, Abhyudaya ]
Nagar, Kalachowky, Mumbai 400 033. ] .. Respondent.
Mr. Sharad Pakale, Sr. Advocate with Adv. Pradeep Patil i/b. Ms. Komal
Punjabi, for the Appellant-MCGM.
Mr. V. K. Gupta, for the Respondent.
CORAM : FIRDOSH P. POONIWALLA,J.
RESERVED ON : 7th NOVEMBER, 2025.
PRONOUNCED ON : 25th MARCH, 2026.
Judgement:-
1 The present First Appeal is filed by the Municipal Corporation
of Greater Mumbai (MCGM) challenging the Judgement dated 15 th March,
S.R.JOSHI 1 of 15
::: Uploaded on - 25/03/2026 ::: Downloaded on - 25/03/2026 21:53:51 :::
fa-768-2010.doc
2008 passed by the Bombay City Civil Court at Bombay. The operative
part of the said Judgement reads as under:-
" ORDER
Suit stands decreed with cost.
It is hereby declared that both Notice dt.
20.02.1997 issued under section 351 of M.M.C. Act
and consequential order of demolition dt.19.01.2001
are illegal, invalid and inoperative.
It is hereby declared that the Plaintiff is
entitled and is therefore, allowed to re-erect the hut
admeasuring 168 sq. ft in the nature of only ground
floor structure, at the suit site.
Decree be drawn accordingly."
2 The Respondent has filed an Interim Application No. 153 of
2023, seeking the following reliefs:-
"(a) This Hon'ble Court be pleased to direct the
appellants to pay a total compensation for the
loss of business and residential premise of
Rs.30,000/- per month from the date of
demolition i.e. 24/07/2002 of the suit premise
till date and further compensation till up to date
and continue paying the same till further orders;
(b) This Hon'ble Court be pleased to direct the
appellants for rehabilitation of the Respondent/
(Orig. Plaintiff) to an alternate premise;
(c) This Hon'ble Court be pleased to provide
compensation and damages as deem fit and
proper by this Hon'ble Court for illegal
demolition the suit premises.
(d) for cost of this application.
S.R.JOSHI 2 of 15
::: Uploaded on - 25/03/2026 ::: Downloaded on - 25/03/2026 21:53:51 :::
fa-768-2010.doc
(e) for such other and further reliefs as may be
necessary in the circumstances of the matter."
FACTS
3 The case of the Plaintiff/ Respondent is as under:-
(a) The Respondent, prior to her marriage, was residing with her
father Budhilal Pyarelal Thakur in a hut behind Building No.38, Jijamata
Nagar, Abhyudaya Nagar, G. D. Ambekar Marg, Kala Chowki, Mumbai 400
033 (hereinafter referred to as "the suit premises"). The area of the suit
premises was 168 sq. ft. The Respondent's father was doing ironing
business on the front side of the suit premises.
(b) The Respondent's father transferred all his right, title and interest in
the suit premises in favour of the Respondent by a Writing dated 2 nd
February, 1981.
(c) The Deputy Collector (Encroachment), Bombay City, having his
office at Old Custom House, Fort, Mumbai 400 023, had issued an Order
dated 28th June, 1996 and recognized the suit premises as authorized. By
the said Order, the suit premises were assessed by the Deputy Collector
(Encroachment) and the Respondent was directed to pay compensation at
the rate of 128/- per month from April 1985 to March, 1992, amounting
to Rs.10,752/- plus Rs.1,000/- to the Deputy Collector (Encroachment).
(d) Thereafter, the Respondent received a Notice dated 20 th February,
1997, under Section 351 of the Mumbai Municipal Corporation Act, 1888
(hereinafter referred to as "the MMC Act"), in respect of the suit premises.
S.R.JOSHI 3 of 15
::: Uploaded on - 25/03/2026 ::: Downloaded on - 25/03/2026 21:53:51 :::
fa-768-2010.doc
(e) After receiving the said Notice under Section 351 of the MMC Act,
the Respondent replied to the said Notice and submitted all necessary
documents by her letter dated 5th March, 1997.
(f) It is the case of the Respondent that, on a scrutiny of the documents
submitted by her as per her reply dated 5 th March, 1997, the F/South
Ward Officer satisfied himself that the suit premises were protected under
the provisions of the Maharashtra Slum Areas (Improvement, Clearance
and Redevelopment) Act, 1971 (hereinafter referred to as "the Slum Act")
and the area in which the suit premises were located had been declared as
a "slum". It is further the case of the Respondent that the F/South Ward
Officer of the Appellant was also satisfied that the suit premises had been
duly approved by the Government of Maharashtra as per the Order dated
28th June, 1996 issued by the Deputy Collector (Encroachment) and,
hence, the Notice dated 20th February, 1997 issued under Section 351 of
the MMC Act, stood revoked and inoperative, and hence, the Respondent
did not challenge the said Notice in the year 1997 or thereafter.
(g) After nearly 4 years, the Deputy Municipal Commissioner passed an
Order dated 19th January, 2001 in respect of the suit premises whereby he
called upon the Respondent to demolish the suit premises within 15 days
from the receipt of the said Order, failing which, the same would be
demolished departmentally at the Respondent's risk and costs.
(h) Being aggrieved by the said Order dated 19 th January, 2001, the
Respondent, through her Advocate, gave Notice dated 29 th January,
2001, under Section 527 of the MMC Act, for filing the suit in the Bombay
City Civil Court at Bombay.
S.R.JOSHI 4 of 15
::: Uploaded on - 25/03/2026 ::: Downloaded on - 25/03/2026 21:53:51 :::
fa-768-2010.doc
(i) The Respondent, thereafter, filed L. C. Suit No.1170 of 2001 against
the Appellant, challenging the said Notice dated 20 th February, 1997
issued under Section 351of the MMC Act and the said Order dated 19 th
January, 2001.
(j) The Respondent filed Notice of Motion No. 1015 of 2001 in L.C.
Suit No. 1170 of 2001 for seeking an injunction against the Appellant
from demolishing the suit premises or interfering with the possession of
the suit premises. In the said Notice of Motion, by an Order dated 5 th
March, 2001, the Bombay City Civil Court directed the Appellant to
produce on record the necessary papers, as, in the Order of the Deputy
Collector (Encroachment), the total area of the suit premises was shown
as 168 sq. ft., whereas the Notice under Section 351 of the MMC Act
described the suit premises as admeasuring 240 sq. ft.
(k) On 5th July, 2001, the Appellant filed its Written Statement in the
said Suit, and by consent of the Advocates for the parties, the Notice of
Motion was ordered to be disposed of with the suit. The suit was
adjourned for framing of issues to 20 th April, 2002. On 20th April, 2002,
the suit was adjourned to 29 th June, 2002 and thereafter adjourned to
19th August, 2002.
(l) On 24th July, 2002, at about 12.30 p. m., one Mr. Ghosh (Officer of
the MCGM) with other employees of F/South Ward of the Appellant, came
to the suit premises, and despite the Respondent's brother-in-law giving
information about the pendency of L. C. Suit No.1170 of 2001, illegally
and unlawfully demolished the suit premises.
S.R.JOSHI 5 of 15
::: Uploaded on - 25/03/2026 ::: Downloaded on - 25/03/2026 21:53:51 :::
fa-768-2010.doc
(m) The Respondent immediately contacted the previous Advocate who,
due to the illness of his wife, was unable to take out any proceedings.
Finally, on 7th August, 2002, the Respondent's Advocate informed the
Respondent to engage another Advocate as he was unable to take out any
proceedings due to his wife's illness.
(n) Thereafter, the Respondent engaged another Advocate and filed
Chamber Summons No. 1162 of 2002 in L. C. Suit No. 1170 of 2001 for
amendment of the plaint and for mandatory order allowing reconstruction
of the suit premises. The said Chamber Summons was rejected by the
Bombay City Civil Court by an Order dated 3rd October, 2002.
(o) Being aggrieved by the said Order dated 3 rd October, 2002, rejecting
the said Chamber Summons, the Respondent filed a Writ Petition in this
Court, being Writ Petition No. 7249 of 2003. The said Writ Petition was
also rejected by this Court by an Order dated 20th February, 2004.
(p) Thereafter, Respondent withdrew the said L. C. Suit No.1170 of
2001 on 17th June, 2004 with liberty to file a fresh Suit on the same cause
of action for appropriate reliefs of mandatory order for reconstruction of
the suit premises.
(q) The Respondent, thereafter, gave Notice under Section 527 of the
MMC Act through her Advocate's letter dated 17th June, 2004.
(r) Thereafter, the Respondent filed L. C. Suit No.4267 of 2004, seeking
the following reliefs:-
S.R.JOSHI 6 of 15
::: Uploaded on - 25/03/2026 ::: Downloaded on - 25/03/2026 21:53:51 :::
fa-768-2010.doc
"(a) that it may be declared by this Hon'ble Court
that the said impugned Notice dated 20.2.1997
bearing No.FS/II/17/UA issued u/s 351 of the
B.M.C. Act by Dy. Municipal Commissioner,
F/South ward is illegal, bad in law and not
maintainable and the order dated 19.1.2001
issued in pursuance thereof be declared as illegal
in operative and uncalled;
(b) That it may be declared by this Hon'ble Court
that the demolition of the suit premises viz a hut
admeasuring about 168 sq.ft situated at Jijamata
Nagar, Behind Building No.38, Abhyuday Nagar,
G.D. Ambekar Marg, Kala Chowki, Mumbai 400
033 on 24.7.2002 by Shri Ghosh, the Dy.
Municipal Commissioner, F/South Ward and
other employees after a period of one year of the
date of order viz. 19.1.2001 issued in pursuance
of Notice dated 20.2.1997 bearing
No.FS/II/17/UA issued u/s 351 of the M.M.C.
Act. is bad in law and uncalled for;
(c) That pending the hearing and final disposal of
the suit the Hon'ble Court be pleased to direct by
mandatory order to the Defendants their servants
and agents to reconstruct the suit premises viz a
hut admeasuring about 168 sq.ft situated at
Jijamata Nagar, Behind Building No.38,
Abhyuday Nagar, G.D. Ambekar Marg, Kala
Chowki, Mumbai 400 033 or in the alternative
the Plaintiff may be allowed to reconstruct the
suit premises and expenses so incurred may be
directed to the Defendants to be paid to the
Plaintiff.
(d) That pending the hearing and final disposal
of the suit the Defendants, their servants and
agents and employees be restrained from
dispossessing the Plaintiff from the plot of land
admeasuring about 168 sq.ft rendered vacant on
S.R.JOSHI 7 of 15
::: Uploaded on - 25/03/2026 ::: Downloaded on - 25/03/2026 21:53:51 :::
fa-768-2010.doc
wrongful demolition, situated at Jijamata Nagar,
Behind Building No.38, Abhyuday Nagar, G.D.
Ambekar Marg, Kala Chowki, Mumbai 400 033."
4 In the suit, no Written Statement was filed by the Appellant.
5 The Respondent led the oral evidence of herself and her
husband - Sharad Sagwekar. The Respondent and her husband were
cross examined by the Advocate for the Appellant. Further, the
Respondent also produced various documents in evidence.
6 By the impugned Judgement dated 15 th March, 2008, the
Bombay City Civil Court decreed the suit with costs. It declared that the
Notice dated 20th February, 1997 issued under Section 351 of the MMC
Act and the consequential Order of demolition dated 19 th January, 2001
are illegal, invalid and inoperative. Further, it was declared that the
Respondent was allowed to re-erect the hut admeasuring 168 sq.ft. in the
nature of ground floor structure at the suit site.
POINTS FOR DETERMINATION
7 In the aforesaid facts, the following points for determination
arise for this Court:-
(A) Whether the Trial Court was correct in holding that the Notice
dated 20th February, 1997 issued under Section 351 of the MMC
Act and the Order of demolition dated 19th January, 2001 are
illegal, invalid and inoperative?
S.R.JOSHI 8 of 15
::: Uploaded on - 25/03/2026 ::: Downloaded on - 25/03/2026 21:53:51 :::
fa-768-2010.doc
(B) Whether the Trial Court was correct in holding that the Respondent
is entitled, and therefore allowed to re-erect the hut admeasuring
168 sq. ft. in the nature of only ground floor structure, at the suit
site?
ARGUMENTS OF THE PARTIES
8 Mr. Suresh Pakale, the learned Senior Advocate appearing on
behalf of the Appellant, submitted that the Trial Court failed to appreciate
that L. C. Suit No.4267 of 2004 was barred by the principles of Res
Judicata as provided under Section 11 of the Code of Civil Procedure,
1908 ("the CPC"). In this context, Mr. Pakale submitted that, since the
Respondent had earlier filed a suit and withdrawn the same, the
subsequent Suit, i.e. L. C. Suit No. 4267 of 2004, was barred by the
principles of Res Judicata as set out in Section 11 of the CPC. In support
of his submission, Mr. Pakale relied upon a Judgement of the Hon'ble
Supreme Court in Center of Indian Trade Unions and Another v/s. Union of
India and Others MANU/ MH/0014/1997.
9 Next, Mr. Pakale submitted that, since the title of the
Respondent was not clear and since the Respondent was not in
possession, the Respondent ought to have file a substantive Suit for title.
In support of his submission, Mr. Pakale referred to the Judgement of the
Hon'ble Supreme Court in S. Santhana Lakshmi & Others v/s. D Rajammal
2025 LawSuit (SC) 1342.
10 Further, Mr. Pakale submitted that, since the Appellant was
S.R.JOSHI 9 of 15
::: Uploaded on - 25/03/2026 ::: Downloaded on - 25/03/2026 21:53:51 :::
fa-768-2010.doc
unable to file a Written Statement in the suit, this Court ought to consider
remanding the matter back to the Bombay City Civil Court in order to give
an opportunity to the Appellant to defend the case properly.
11 On the other hand, Mr. V. K. Gupta, the learned Counsel
appearing on behalf of the Respondent, submitted that the Appellant
was wrong in contending that the present suit was barred by the
principles of Res Judicata. In this context, Mr. Gupta submitted that the
Respondent had withdrawn the earlier suit with liberty to file L. C. Suit
No. 4267 of 2004. He submitted that, in these circumstances, there was
no question of L. C. Suit No. 4267 of 2004 being barred by the principles
of Res Judicata. He further submitted that, since the Respondent had
withdrawn the earlier suit with liberty to file a fresh suit, as recorded in
paragraph 4 of the impugned Judgement, the Respondent was entitled to
file the present suit.
12 As far as the Judgement in S. Santhana Lakshmi (supra)
relied upon by Mr. Pakale was concerned, Mr. Gupta submitted that the
same was clearly distinguishable on facts.
13 Further, Mr. Gupta took me through the evidence led by the
Respondent in the suit and the cross examination. Mr. Gupta also took me
through the documents and the impugned Judgement and submitted that,
in light of the documentary and oral evidence of the Respondent, the Trial
Court was correct in decreeing the suit.
14 Mr. Gupta also referred to I. A. No. 153 of 2023 taken out by
the Respondent in this Appeal and submitted that the Appellant must be
S.R.JOSHI 10 of 15
::: Uploaded on - 25/03/2026 ::: Downloaded on - 25/03/2026 21:53:51 :::
fa-768-2010.doc
directed to pay compensation to the Respondent for the loss of business
and residential premises from the date of the demolition i.e. 24 th July,
2002 till date.
ANALYSIS AND FINDINGS
15 I have heard the learned Advocates for the parties and
perused the pleadings and documents on record.
16 As far as the submission of Mr. Pakale that the present suit is
barred on the ground of Res Judicata is concerned, in my view, the same
does not have any merit whatsoever.
17 The principles of Res Judicata are well settled and are set out
in Section 11 of the CPC. Even as far as the Judgement of the Hon'ble
Supreme Court in Center of Indian Trade Unions (supra) is concerned,
there is no dispute regarding the proposition on Res Judicata laid down in
the said Judgement. However, by virtue of the provisions of Section 11 of
the CPC, for the principles of Res Judicata to apply, the prior suit is to be
heard and finally decided by the Court in respect of issues which are
directly and substantially in issue in the said prior suit and in the
subsequent suit. In the present case, the Respondent had withdrawn the
prior suit and the issues in the prior suit had not been heard or decided
by the Bombay City Civil Court. Therefore, the question, of the present
suit being barred by Res Judicata, does not arise at all.
18 Further, as the Respondent had withdrawn the earlier suit
with liberty to file the present suit, the Respondent was entitled to do so
S.R.JOSHI 11 of 15
::: Uploaded on - 25/03/2026 ::: Downloaded on - 25/03/2026 21:53:51 :::
fa-768-2010.doc
by virtue of Order 23 Rule 1 (3) of the CPC, which reads as under:-
"(3)-Where the Court is satisfied,-
(a) that a suit must fail by reason of some formal defect,
or
(b) that there are sufficient grounds for allowing the
plaintiff to institute a fresh suit for the subject-matter of a
suit or part of a claim,
if may, on such terms as it thinks fit, grant the plaintiff
permission to withdraw from such suit or such part of the
claim with liberty to institute a fresh suit in respect of the
subject-matter of such suit or such part of the claim."
19 Mr. Pakale relied upon paragraphs 10 and 11 of the
Judgement in S. Santhana Lakshmi (supra). Paragraphs 10 and 11 read as
under:-
"10 It is also significant that though the plaintiff did
not have possession, she had not claimed recovery of
possession. While asserting a Will and title on its
strength, there should have been a declaration of title
sought, especially when the contention of the defendant
was that he came into the property as a co-owner and
then occupies it with absolute rights, making valuable
improvements. The defendant also did not seek to get a
declaration on the basis of an arrangement entered
into with the father and the other brother or seek a
partition on the strength of a counter claim.
[11] In the above circumstances, we cannot but find
the 'Will' is proved but the right of the testator to
bequeath the property is still under a cloud. Even if the
title is established, there should have been a recovery of
possession sought by the plaintiff. The ill-drafted plaint
and the clear admissions made in the witness box
ought to have restricted the trial court and the High
Court from granting an injunction against the
S.R.JOSHI 12 of 15
::: Uploaded on - 25/03/2026 ::: Downloaded on - 25/03/2026 21:53:51 :::
fa-768-2010.doc
interference of peaceful enjoyment of the property,
especially when the possession was admitted to be with
the defendant, in the pleadings as also the oral
evidence. The injunction against alienation is perfectly
in order since the defendant too has not sought for a
declaration of title.
20 In my view, the said Judgement is not applicable to the facts
of the present case. The present suit challenges the Notice dated 20 th
February, 1997 issued under Section 351 of the MMC Act, and an Order
dated 19th January, 2001 for demolition of the suit premises. Further, the
suit seeks re-erection of the suit premises on the ground that they were
wrongly demolished. The present suit is not a suit for title or possession
of the suit premises. In these circumstances, the Judgement in S. Santhana
Lakshmi (supra) is not applicable.
21 As far as the submission of Mr. Pakale that the suit should be
remanded back to the Bombay City Civil Court as the Appellant should
be given an opportunity to file a Written Statement and defend the suit
properly is concerned, again I see no merit in the same. The Appellant
chose not to file a Written Statement in the said Suit. Therefore, the
Appellant has to take the consequences of not filing a Written
Statement in the suit and the suit cannot be remanded back, especially
since the suit is of the year 2004 and the impugned Judgement is dated
15th March, 2008.
22 As far as the merits of the present case are concerned, it is
undisputed that the suit premises were in Jijamata Nagar, which had been
declared as a 'Slum' area. Further, the Order dated 28 th June, 1996 of the
S.R.JOSHI 13 of 15
::: Uploaded on - 25/03/2026 ::: Downloaded on - 25/03/2026 21:53:51 :::
fa-768-2010.doc
Deputy Collector (Encroachment) declares the suit premises as a
protected structure and the Respondent as a protected occupier. As rightly
held by the Trial Court, in the light of the suit premises being a protected
structure, the question of issuing a Notice under Section 351 of the MMC
Act, or passing any order of demolition, by the Appellant, does not arise at
all. The Appellant could not have demolished the suit premises as it was a
protected structure.
23 Further, as rightly held by the Trial Court, in the light of the
suit structure being in a 'Slum' area, the Appellant and its officers had no
right or jurisdiction to issue a Notice under Section 351 of the MMC Act or
pass an Order of demolition or demolish the suit premises.
24 In these circumstances, the Trial Court has rightly declared
that the Notice dated 20th February, 1997 issued under Section 351 of the
MMC Act and the consequential order of demolition dated 19 th January,
2001 are illegal, invalid and inoperative.
25 Further, since the suit premises were illegally demolished, the
Respondent has the right to reconstruct the same, and, therefore, the Trial
Court has rightly allowed the Respondent to re-erect the hut admeasuring
168 sq. ft. in the nature of ground floor structure at the suit site.
26 Accordingly, I answer Points of Determination (A) & (B) in
the affirmative.
27 As far as the Interim Application No,. 153 of 2023 filed by the
S.R.JOSHI 14 of 15
::: Uploaded on - 25/03/2026 ::: Downloaded on - 25/03/2026 21:53:51 :::
fa-768-2010.doc
Respondent seeking compensation is concerned, the same cannot be
granted. The Respondent did not seek compensation in the suit and,
therefore, cannot be permitted to seek compensation for the first time in
the present Appeal. For these reasons, Interim Application No. 153 of
2023 filed by the Respondent is dismissed.
ORDER
28 In the light of the aforesaid discussion, and for the reasons
stated above, the following Orders are passed:-
(i) The First Appeal is dismissed;
(ii) Interim Application No. 153 of 2023 filed by the Respondent is
dismissed;
(iii) In the facts and circumstances of the case, there shall be no order as
to costs.
(FIRDOSH P. POONIWALLA,J.)
S.R.JOSHI 15 of 15
