spb/- 1 ao533-10.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE SIDE JURISDICTION APPEAL FROM ORDER NO. 533 OF 2010 ALONGWITH CIVIL APPLICTION NO. 686 OF 2010 IN A.O.NO.533/2010 Anish Pukhraj Jain ... Appellant. . Vs. Brihanmumbai Municipal Corporation & Anr. ... Respondents. --- Mr. M.P.Vashi i/by M/s. M.P.Vashi & Associates for the Appellant. Ms. K.K.Soraan for the Respondents. . ----- CORAM : D. G. KARNIK, J. DATE : 14th DECEMBER, 2010. P.C. 1 By this appeal, the appellant challenges the order dated 3rd May, 2010 passed by the learned Judge, City Civil Court at Dindoshi declining to grant ad-interim injunction and making the motion returnable on 14th June, 2010. 2 There are more than one reasons for not interfering in the impugned order. Firstly, after declining to grant ex-parte ad-interim spb/- 2 ao533-10.sxw injunction, the learned Judge posted the matter on 14th of June,2010. The appellant, therefore, could have requested the court to hear the motion on 14th June, 2010 or any subsequent date thereafter. If the appellant would have been diligent, the matter would have certainly been heard and decided by the trial court by this time. 3 Order 39 Rule 3 says that the court shall in all cases, except where it appears that the object of granting the injunction would be defeated by the delay, before granting an injunction, direct notice of the application for the same to be given to the opposite party. It is a normal rule to give notice to the other side and hear the other side before granting an ex- parte injunction except in cases where the court is of the view that not granting the injunction would defeat the object of granting an injunction. It is not shown the purpose of injunction would have been defeated if the other side was given an opportunity of hearing before passing of an order. 4 Mr. Vashi submitted that in the previous suit being L.C. Suit No. 1565/2001 filed by the previous tenant, it was held that the structure was authorized and injunction was granted and therefore, in the present case the appellant had made out a strong prima facie case for grant of ex- spb/- 3 ao533-10.sxw parte injunction. Perusal of the plaint in the previous suit shows that that suit related to the structure, admeasuring 32’ x 7’3”. Though in the present suit the suit structure is adjoining to the old premises and the extension is made to the old structure to the extent of 6’ x5” x 8’.00” with height of 12’. Therefore, the structure in respect of which the suit notice under section 351 is issued appears to be a different structure than the structure involved in the previous suit. Notice of demolition is not issued in respect of the old structure admeasuring 32’ x 7’.3” inches. 5 Mr. Vashi relied on a decision of this court in A.O. 257/1999 dated 15th April, 1999. In that case a notice issued under section 354A of the Mumbai Municipal Corporation Act. Therein the court held that since the construction was complete, section 354-A had no application. In the present case notice is not issued under section 354-A in respect of the structure under construction. The notice under section 351 is issued for the structure which has already been erected. Hence, the decision cited by Mr. Vashi has no application to the facts of the present case. 6 Mr. Vashi then relied upon the decision in the case of Andheri Marol Kurla Bus Service vs. The State of Bombay 1957 (60) Bombay Law Reporter -1100 and submitted that since the report of Assistant spb/- 4 ao533-10.sxw Engineer Mukadam was relied upon without giving a copy thereof to the appellant, the order was ex-facie incorrect. I have perused the show cause notice as also the order passed by the Assistant Commissioner regarding the demolition. Neither the notice nor the order relies upon the report of Mukadam. Since the report of the Mukadam has not been relied upon while passing the order, it cannot be said that the order suffers from any ex-facie illegality which required the trial court to grant injunction without hearing the other side. 7 For all these reasons, the Appeal is rejected. 8 In view of the rejection of the Appeal, the Civil application no. 686 of 2010 does not survive and the same is disposed of. [D.G. KARNIK, J.]