1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO.125 OF 2009 WITH CIVIL APPLICATION NO.144 OF 2009 Dr.Shahnawaz Abdul Shakur Kazi ..Appellant V/s Anees Aibani & ors ..Respondents Mr.Anil C. Singh i/b.Mr.D.R.Shah, Advocate, for the appellant Mr.R.C.Singh, Advocate, for the respondents CORAM : R.M.SAVANT, J. DATE : 27TH JANUARY, 2009 P.C. . The above appeal challenges the order dated 26th December, 2008 passed by the learned Judge of the City Civil Court, Dindoshi, Mumbai by which order the ad-interim reliefs claimed by the appellant/plaintiff came to be rejected. 2. The appellant is the original plaintiff, who has filed a suit seeking mandatory injunction to restrain the defendants from causing 2 any obstruction in ingress and egress to plaintiff or his patients into plaintiff' s clinic. 3. The plaintiff is running an eye clinic on the first floor, B- wing of the building known as Abba Apartment, Jogeshwari (West), Mumbai – 400 102. The building has been granted full Occupation Certificate on 5th October, 2008. The said Occupation Certificate also covers the clinic on the first floor run by the plaintiff. The plaintiff apprehending obstruction from the defendants has filed the said Short Cause Suit No.2369 of 2008. In the said suit, plaintiff filed Notice of Motion numbered as Exh.2 claiming temporary injunction against the defendants. The said Motion was moved for ad-interim reliefs when the impugned order came to be passed. A persual of the said order indicates that the learned Judge has refused ad-interim reliefs to the plaintiff solely on the ground that in terms of D.C.Regulation 51 of the Development Control Regulations, 1991 the plaintiff requires the special permission from the Commissioner, BMC for use of the flat for non residential purposes i.e.for running a clinic and therefore, the 3 plaintiff having not obtained the permission was not entitled to the ad- interim reliefs. 4. The learned counsel for the appellant/plaintiff drew my attention to the D.C.Regulation 51. In so far as the clinic is concerned, which find a place in Clause (ii) of the said D.C.Regulation, the special permission of the Municipal Commissioner is not contemplated. The special permission is contemplated in respect of Nursing Homes which are in Clause (iii) of regulation 51. In my view, therefore, the Trial Court has proceeded on wrong premises and refused ad-interim reliefs. Since the plaintiff is already running an eye clinic and since the same does not appear to be prima facie in violation of regulation 51, in my view, the instant appeal can be disposed of by the following order. (i) Pending the hearing of the Notice of Motion, there would be ad-interim reliefs in terms of prayer clauses (a) & (b) of the Notice of Motion. This is on the condition that the plaintiff is running a clinic and not conducting any operation etc. (ii) The hearing of the Motion is expedited and Motion is directed to be disposed of within a period of 12 weeks from 4 date. The Motion would be decided on its own merits and in accordance with law. (iii) In case the plaintiff is conducting operation or using the said clinic as Nursing Home, the defendants would be at liberty to complain to the BMC and if such complaint is received, BMC would take appropriate action in accordance with law. (iv) Appeal from Order is accordingly disposed of. (R.M.SAVANT, J.)