1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO. 176 OF 2008 FIRST APPEAL NO. 176 OF 2008 FIRST APPEAL NO. 176 OF 2008 with CIVIL APPLICATION NO. 508 OF 2008 IN SUIT NO. 9347 OF 1990 Shafi Ashfaq Ahmed and Ors. ... Appellants Versus Municipal Corporation of Gr.Bombay &Ors. ... Respondents Mr. Indus Prakash Tripathi, Advocate, i/b. Mr. C.K.Tripathi,Advocate, for the appellants. Mr. J.J.Xavier, Advocate, for the respondent No.1. CORAM: J.H.BHATIA, J. CORAM: J.H.BHATIA, J. CORAM: J.H.BHATIA, J. DATE : 8th July,2008. DATE : 8th July,2008. DATE : 8th July,2008. P.C. P.C. P.C. 2 1. With consent of the learned Counsel for the parties, the Appeal is taken up for final hearing and disposal at the admission stage itself. 2. The appellants had filed Long Cause Suit No.9347 of 1990 against the respondents seeking certain reliefs mainly to restrain the Municipal Corporation from interfering in possession of the plaintiffs over the suit stalls situated at Joseph Rodrigues Compound, bearing Survey No.238, Hissa No.3, (part), CTS No.54B, Opposite Municipal Market Market Lane, S.G.Barve Marg, Kurla, Bombay. The suit was filed in the year 1990. It appears that from time to time, the plaintiffs had filed Notices of Motion. The first Notice of Motion No.6787 of 1990 for interim relief was disposed of on 5.6.94 on the ground that construction was not made with necessary permission. Thereafter, the plaintiffs filed an application for regularisation of the construction which was rejected by the Municipal Corporation. Again the appellants/plaintiffs took out Notice of Motion No.2299 of 2000 praying for certain interim reliefs of almost same nature. That was also dismissed on 28.6.2005. Thereafter, a third Notice of Motion (not numbered) was filed with almost similar reliefs. During the hearing of the said Notice of Motion, the Advocate for the 3 Municipal Corporation filed a Pursis contending that the Corporation has already demolished unauthorised wooden stalls of the plaintiff Nos. 1 to 8 and, therefore, nothing remains in the plaint. In view of this pursis, the learned Judge of the City Civil Court not only dismissed the unregistered Notice of Motion, but also dismissed Suit No.9347 of 1990 filed by the plaintiffs. 3. The plaintiffs have preferred the present Appeal against the dismissal of the suit. It is their contention that the suit was not fixed for hearing nor any preliminary issue was framed about maintainability of the suit and also there was no occasion for the trial Court to dismiss the suit while hearing the Notice of Motion. 4. Heard the learned Counsel for the parties. 5. Mr.Tripathi, the learned Counsel for the plaintiffs/appellants vehemently contended that the trial Court could not dismiss the suit merely on the basis of a pursis filed by the Municipal Corporation in reply to the Notice of Motion. According to him, the learned trial Court committed serious error by dismissing the suit. The learned Counsel for the 4 respondent No.1 however, contends that in view of the circumstances noted in the impugned order, in fact, nothing survived and, therefore, the trial Court was justified in passing the impugned order of dismissal of the suit. 6. After perusal of the record as well as the impugned order, I find that it is not possible to sustain the order passed by the trial Court. It is true that the plaintiffs had repeatedly filed notices of motion seeking almost similar reliefs and, therefore, in view of the pursis filed by the Municipal Corporation, the trial Court would be justified in rejecting the Notice of Motion. However, on that day, neither the suit was fixed for hearing nor the parties were heard about the merits or de-merits of the suit, no preliminary issue was framed about tenability of the suit in view of the changed circumstances nor the plaintiffs were given an opportunity to make an amendment to the plaint if they so desired. It is possible that the plaintiffs could have a ground to challenge the order of demolition by making amendment to the plaint. As the suit was not fixed for hearing or for disposal, the trial Court was not justified in dismissing the same while disposing of the unregistered Notice of Motion. 5 7. In view of the circumstances noted above, the Appeal is allowed and the impugned order is hereby set aside. Suit No.9347 of 1990 is hereby restored to the file of the Judge, City Civil Court for disposal as per law. As the suit itself is pending for last about 18 years, the trial Court shall expedite the same and dispose of the same as early as possible, and in any case, within six months from today. 8. In the result, the Civil Application No.508 of 2008 does not survive and stands disposed of. (J.H.BHATIA,J.) (J.H.BHATIA,J.) (J.H.BHATIA,J.)