1 pps IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO.599 OF 2009 Fariyas Hotel Pvt. Ltd. ..Appellant versus Municipal Corporation of Gr. Mumbai ..Respondent Mr.A.A.Kumbhakoni i/b. M/s. Thakore Jariwala & Associates for the appellant Mr.Xavier for the respondent CORAM : R.Y.GANOO, J. DATE : 26th JUNE, 2009. P.C: 1. Appeal is admitted. Learned Advocate Mr.Xavier waives service. In the peculiar facts and circumstances of the case, the appeal is taken up for final hearing and is being disposed of by passing appropriate order. 2. The Corporation issued notice to the appellants 2 under Section 53 of the MRTP Act in regard to certain structure, which according to the Corporation came to be constructed on the property of the appellants. The appellants instituted Long Cause Suuit No.2745 of 2003 in the City Civil Court at Bombay challenging the said notice and applied for appropriate reliefs. The learned Judge of the City Civil Court gave opportunity to the parties to place their respective case before the Court and ultimately by judgment and decree dated 17.3.2009 the learned Judge of the City Civil Court (hereafter referred to as the learned trial Judge) passed a decree thereby rejecting the plaint under Order VII Rule 11(a) of CPC as according to him the plaint did not disclose any cause of action. This judgment and decree dated 17.3.2009 is challenged in this appeal. 3. I have extensively heard learned Advocates Mr.Kumbhakoni and Mr.Xavier. Learned Advocate Mr. Kumbhakoni submitted that the learned trial Judge upto paragraph 16 of the impugned judgment came to 3 the conclusion that the City Civil Court had no jurisdiction to entertain the suit filed by the appellants challenging notice under Section 53 of the MRTP Act by relying upon the provisions under Section 149 of the MRTP Act and finally came to the conclusion that the court had no jurisdiction. Thereafter from paragraph 18 onwards the learned Judge has discussed the point that he was obliged to look into the facts and ascertain whether the cause of action was available to the appellants and that is how he proceeded to consider the record and he ultimately came to the conclusion that the appellants had no cause of action and therefore he rejected the plaint. Learned Advocate Mr. Kumbhakoni submitted that if the learned trial Judge came to the conclusion that the City Civil Court had no jurisdiction, the subsequent exercise carried out by the learned judge was not proper and therefore the impugned order is illegal and therefore the same is required to be set aside. 4 4. Learned Advocate Mr. Xavier supported the impugned judgment and decree by contending that if the learned Judge was satisfied that there was no cause of action he was right in rejecting the plaint. Learned Advocate Mr.Xavier also added to his submission that during the pendency of the suit the request for regularization was made by the appellants by their letter dated 12.6.2003 through Architect and that the said proposal has been duly considered and rejected by the Corporation by its decision contained in letter dated 6.7.2005. Learned Advocate Mr. Xavier submitted that this was also a ground which must have moved in the mind of the learned Judge while arriving at the final Order. 5. After having considered the rival submissions I am inclined to observe that in the present case the learned Judge felt it necessary to check up whether there was a cause of action available to the appellants after coming to the conclusion that the City Civil Court had no jurisdiction to 5 entertain the suit. On reading the text of paragraph 18 it is clear that the learned Judge though it fit to check up whether there was a cause of action to the appellants in view of the judgment in the case of Mr.Quari Mohammed Zakir Hussain & Ors. vs. Municipal Corporation of Greater Mumbai & Ors. 2002 Vol.104(1) Bom.L.R.120. 6. I have perused the reasons contained in paragraph 18 as to why the learned Judge has observed that there is no cause of action. The learned Judge has done that on the basis of the judgment quoted above. While carrying out the exercise of ascertaining as to whether there was any cause action it was necessary for the learned Judge to give reasons for arriving at the decision on the question of cause of action. Reading of paragraph 18 it is clear that the learned Judge has not mentioned reasons as to why he came to the conclusion that the appellants had no cause of action. It was necessary for the learned Judge to give reasons in detail because this was a matter 6 where evidence was led before him. In the absence of reasons as to why the appellants had no cause of action, I am inclined to observe that the judgment and decree dated 17.3.2009 is required to be interfered with and that the same is required to be set aside and that the suit will have to be restored to the file of the City Civil Court for fresh hearing in accordance with the provisions of law. Appropriate order shall be passed hereunder. 7. During the course of hearing this court was informed that the learned Judge who has passed judgment and decree dated 17.3.2009 is transferred. In view of this it will be necessary for the learned Principal Judge, City Civil & Sessions Court, Bombay to assign this suit to some other Judge and the said Judge will have to hear both the sides afresh by giving proper opportunity to them and then pass an appropriate order keeping in view the various provisions of law. 8. In view of the above, the following order is 7 passed. ORDER i. First appeal is allowed. ii. Judgment and decree dated 17.3.2009 passed in Long Cause Suit No.2745 of 2003 is set aside. iii. Long Cause Suit No.2745 of 2003 is restored to the file to City Civil Court, Bombay. iv. The learned Principal Judge, City Civil & Sessions Court, Bombay shall assign the above suit to a Judge and after such assignment, the learned Judge to whom the suit is assigned shall take up the said suit for hearing in accordance with the provisions of law. The learned Judge shall give opportunity to all the parties to advance their respective submissions on all points and then he shall deliver his judgment. v. Till the disposal of the suit in above terms, 8 the Corporation shall not act in terms of the impugned notice. There shall be no order as to costs. vi. After the aforesaid order was passed, learned Advocate Mr.Xavier appearing on behalf of the Corporation submitted that for some reason the Corporation could not file written statement in the suit. He submitted that this Court should permit the Corporation to file written statement when the matter would be taken up before the learned Judge to whom it would be assigned pursuant to the Order of this court. In my view it will not be proper for this court to pass such a direction. Ultimately it is for the learned trial Judge hearing the suit, to decide whether the Corporation can be permitted to file written statement which could not be filed earlier. Needless to mention that if application is filed to seek permission to file written statement, the learned Judge shall consider the same. No views are expressed on the merits of the entire matter. 9 Vii. In view of the disposal of the first appeal, Civil Application No.1841 of 2009 does not survive and the same is disposed of with no order as to costs. Viii. Appellants shall produce the authenticated copy of this order before the learned Principal Judge on 9.7.2009 so that he can pass appropriate order regarding assignment of the aforesaid suit to appropriate court. The learned Principal Judge need not wait for formal writ from this Court. (R.Y.Ganoo, J.)