1 56 fa.1583.11 ndm IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO. 1583 OF 2011 Sarojini Ramanna Shetty. ... Appellant Versus Mumbai Municipal Corporation for Greater Mumbai. ... Respondent ----- Mr. Akhilesh Upadhyay for the Appellant. Mr. Vinod Mahadik for the Respondent / BMC. ----- CORAM : A.S.OKA, J. DATE : 02 nd September, 2011. P.C. 1 Heard the learned counsel appearing for the parties. 2 Considering the impugned judgment and order, the appeal is forthwith taken up for final disposal. 3 On perusal of the impugned order, it is apparent that for dismissing the suit filed by the Appellant, the learned trial Judge has adopted a procedure, which is not known to the law. The Appellant – plaintiff filed a suit for declaration that notice issued by the Respondent 2 56 fa.1583.11 - Corporation and order passed thereon of demolition are illegal. The second prayer was for perpetual injunction. In the said suit of the year 2011, a draft notice of motion was taken out for ad-interim injunction. The said draft notice of motion was placed before the learned trial Judge on 15 th June, 2011. The impugned order has been passed on the draft notice of motion. The learned trial Judge has recorded a finding on merit that there is no substance in the contention of the Appellant that the suit structure is authorized. In the last paragraph of the impugned order, the learned Judge has observed thus: “..... It is not necessary to restrain the BMC from executing its order, when the plaintiff has failed to establish that the structure is authorized one even after giving sufficient opportunity.” 4 The learned Judge was hearing only a prayer for ad- interim relief. There was no occasion for the learned Judge to record findings on merits of the suit at the stage of consideration of the prayer for ad-interim relief. The learned Judge could have considered only question whether there was a prima-facie case made out for granting 3 56 fa.1583.11 ad-interim injunction. However, while deciding the prayer for grant of ad-interim relief, the learned Judge has proceeded to dismiss the suit. This Court has repeatedly disapproved such mode of disposal of the suit while deciding the notice of motion for interim relief. While recording dissatisfaction about the manner in which the suit has been disposed of, an order of remand will have to be passed. 5 On 10 th August, 2011, this Court has already recored that a substantial part of the suit structure has been demolished by the Respondent. On that date, this Court directed the parties to maintain status-quo as obtaining on that date. 6 As the suit structure has been substantially demolished, it will be open for the Appellant to take out appropriate proceedings in the pending suit. 7 Hence, I pass the following order: i. The impugned judgment and order dated 15 th June, 2011 is quashed and set aside ; 4 56 fa.1583.11 ii. The S.C. Suit No.1185 of 2011 alongwith the draft notice of motion therein are restored to the file of the trial Court ; iii. The trial Court shall take up the prayer for ad- interim relief for hearing as expeditiously as possible. The ad-interim relief granted by this Court on 10 th August, 2011 will continue to operate for a period of six weeks from today ; iv. All the contentions of the parties on merits of the suit are expressly kept open ; v. The appeal is partly allowed on above terms with no order as to costs ; and vi. The Civil Application No.2859 of 2011 does not survive and the same is disposed of. [ A.S.OKA, J ]