1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO.1334 OF 2008 WITH CIVIL APPLICATION NO.1646 OF 2008 Manwar Hussain Mohd. Jikri ..Appellant V/s The Municipal Corporation of Greater Mumbai ..Respondent Mr.Anil C. Singh i/b.Mr.Prashant P. Surve, Advocate, for the appellant Ms.K.K.Soraan, Advocate, for the MCGM CORAM : R.M.SAVANT, J. DATE : 9TH JANUARY, 2009 P.C. . This appeal is directed against the Order dated 18th December, 2008 by which the ad-interim reliefs have been refused by the City Civil Court. 2. The appellant/plaintiff has filed the above suit impuging the notice issued under Section 55(1) of the M.R.T.P.Act, 1966. The issuance of the said notice is challenged on various grounds in the 2 suit but primarily on the ground that it is malafide and issued at the instance of the landlord, who had instituted a suit against the Appellant in the City Civil Court which came to be dismissed on account of which it is the case of the Appellant that the land lord has instigated the respondent-Corporation to issue the impugned notice under Section 55(1) of the M.R.T.P.Act, 1966. 3. The Notice of Motion was moved for ad-interim reliefs. The ad-interim reliefs were rejected on the ground that suit itself was not maintainable in view of the pronouncement of this Court in the Judgement reported in 2005(3) Bombay C.R., 300 in the matter of Mohan Bhave Vs. B.M.C wherein the learned Judge has relied upon the bar under Section 149 of the M.R.T.P.Act, 1966. 4. The learned counsel for the appellant has relied upon the Judgment of a learned Single Judge of this Court reported in 2002(2) Bom.C.R.98 in the matter of Qari Mohammed Zakir Hussain & others Vs. Municipal Corporation of Greater Mumbai and others. Paragraphs 15 to 17 of the said Judgment is material and reproduced 3 herein under :- “On conjoint reading of the aforesaid provisions, it would appear that no suit or prosecution can be maintained against the competent authority or against any person acting under its authority for anything which is in good faith done or intended to be done under the said Act or Rules made thereunder. Section 42 of the Act opens with the expression. “Save as otherwise expressly provided in this Act” followed by, “no Civil Court shall have jurisdiction in respect of any matter which the administrator, competent authority or Tribunal is empowered by or under this Act, to determine, and no injunction shall be granted by any Court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under this Act. “As a necessary corollary it follows that if the allegation is that the result of fraud, collusion or mala fide and is clearly in transgression of the powers conferred on that person or authority under the Act or Rules, in such a case, the allegation would be actionable, before the Civil Court being one of civil nature to be tried only by the Civil Court by virtue of section 9 of the Code of Civil Procedure.” “Understood thus, what is to be seen is whether the allegations in the plaint are of such nature that the plaintiff complaints that the offending action is mala fide and in transgression of the authority. If such are the allegations, then the suit would obviously not be barred in terms of the bar of jurisdiction provided for under section 42 of the Act, 1971 for, such a suit would be outside the purview of the said provision because the offending act is alleged to have been committed not in good faith or intended to be done under the said Act, but for extraneous reasons.” 5. The said Judgment therefore lays down the exceptions where a suit can be entertained inspite of the statutory bar. In the 4 light of the said Judgment and in view of the fact the appellant/plaintiff has filed the suit challening the notice on the ground of it being malafide, in my view, the appellant cannot be concluded at the ad- interim stage and the Trial Court would have to consider the Notice of Motion also in the light of the Judgment (supra). The impugned order is, therefore, required to be set side and is accordingly set aside. The Trial Court is directed to hear and decide the Notice of Motion filed by the appellant within a period of six weeks from date. Though the Trial Court has adjourned the above Notice of Motion to 13th February, 2009, for filing reply, in view of the fact that the said order has been set aside the respondent-Corporation is directed to file its reply within a period of two weeks from date. The Trial Court thereafter to decide the Notice of Motion within the period stipulated in this order. Both the parties to maintain status-quo in respect of the structure. Needless to say that the Notice of Motion would be decided on its own merits and in accordance with law. The above Appeal from Order is accordingly disposed of. (R.M.SAVANT, J.) 5