1 HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION. FIRST APPEAL NO.107/2009 Frankey Ferreira of Mumbai. ..Appellant -VERSUS- Brihanmumbai Municipal Corporation. ..Respondent ......... Mr.Nitin G. Raut, Advocate for the appellant. Mr.J.J.Xavier, Advocate for the respondent/Corporation. .......... CORAM : A.P.DESHPANDE, J. DATED : 24TH FEBRUARY, 2009. P.C. : 1. By consent of the parties, the appeal is taken up for final hearing. 2. It is the case of the appellant/plaintiff that the respondent Corporation served the notice under Section 351 of the B.M.C. Act on the appellant dated 30.05.2002, followed by another notice dated 09.06.2003. The appellant claims that he replied both the notices. However, according to him as the Corporation did not pass an order within a reasonable period, the appellant/plaintiff apprehended demolition of the structure at the hands of the Corporation authorities, hence, perceiving urgency approached the City Civil Court 2 immediately. It is further contended by the learned counsel for the appellant that factually the Trial Court is not right in holding that it was an admitted position that the appellant/plaintiff did not serve the notice under Section 527 of the B.M.C. Act on the Corporation. It is tried to contend that the observations made in the concluding portion of paragraph No.17 of the judgment that “Admittedly, the plaintiff has not given notice under Section 527 of the B.M.C. Act”, are factually incorrect. 3. Be that as it may, the learned counsel for the appellant has pointed out that there is divergence in the finding recorded against the Issue No.2 and the reasons recorded in paragraph No.17 answering the said issue. The finding of Issue No.2 is that the suit is maintainable for want of notice under Section 527 of the B.M.C. Act whereas reading of the paragraph No.17 reveals that the Trial Court has found that the suit without notice under Section 527 is not maintainable. The said finding has been arrived at after holding that there was no urgency for the plaintiff to institute a suit without notice. As the finding recorded against the issue No.2 does not go hand in hand with the reasons pointed out in paragraph No.17, the learned counsel for the appellant submits that the impugned judgment suffers with non application of mind and thus, the issue needs to be reconsidered. 4. The learned counsel for the respondent/Corporation has no objection to set aside the impugned order and for remand of the 3 matter to the Trial Court for de-novo trial and decision thereon in accordance with the law. 5. In view of the submissions made by the learned counsel appearing for the respective parties, I deem it appropriate to set aside the impugned order which goes to dismiss the suit of the appellant/plaintiff. In the result, the impugned judgment and decree dismissing the suit filed by the appellant/plaintiff is quashed and set aside. The matter is remanded back for retrial in accordance with the law after affording opportunity of hearing to both the parties. The parties shall appear in the Trial Court on 18.03.2009. I hope and trust that the Trial Court shall proceed to decide the suit as expeditiously as possible preferably within a period of six months from the date of appearance of the parties before it. 6. The appeal is allowed and disposed of with no order as to costs. The parties to maintain status-quo with regard to the suit property till the decision of the suit. JUDGE