1 ao87 ssp IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION APPEAL FROM ORDER NO.87 OF 2011 Morgan Arthur Jacinto ...Appellant vs. Municipal Corporation of Greater Mumbai ...Respondent Mr.R.A.Thorat for the appellant Mr.Vinod Mahadik for the respondent-B.M.C. CORAM : A.S.OKA,J. DATE : FEBRUARY 21,2011 P.C.: 1 Heard learned counsel for the appellant. By the impugned order, the notice of motion for temporary injunction filed by the appellant has been dismissed. 2 The challenge by the appellant-plaintiff in the suit was to the notice dated 17th August 2010 issued in purported exercise of power under section 354 (A) of the Mumbai Municipal Corporation Act,1888. The allegation in the said notice was that the appellant was carrying on unauthorised repairs to the punctured slab of House no. 119 more particularly described in the said notice. 3 One of the reasons recorded by the learned trial Judge for rejecting the notice of motion is that the suit structure has been demolished by the respondent- Corporation. The learned counsel for the appellant has seriously challenged the said finding. He submitted that the photographs were placed on record to show that there is no demolition carried out. He submitted that the alleged statement of the Advocate for the plaintiff recorded in paragraph 16 of the impugned order does not 2 ao87 show that there is an admission by the appellant that the structure has been demolished. He submitted that the issue of legality of the notice dated 17th August 2010 will have to be decided and therefore, order of status quo ought to have been passed. 4 I have given careful consideration to the submissions. Paragraph 15 of the impugned order reads thus : 15 The said photographs reveal the date of demolition as 20/9/2010. It also appears that on the same day the suit has been filed without mentioning the fact of demolition. It also appears that the said fact was mentioned by the concerned Legal Officer of Defendant Corporation before Hon ble High Court. In spite of that in subsequent Affidavit which came to be filed on record by the plaintiff on 16/11/2010 in this Court, there is no mention of demolition of notice structure. As per the photographs and action papers i.e demolition programme, letter to Vakola Police Station by Municipal Corporation and demolition registration, prima facie it appears that the suit structure has been demolished by the Defendant Corporation in pursuant to impugned Notice u/sec.354-A of M.M.C.Act. Thus, at present no suit structure is in existence and purpose of impugned notice has been served and nothing has remained to decide any legality of impugned order. 5 In paragraph 16 while dealing with the issue of delay in approaching the Court the learned Judge has observed thus : 16...Mr.Thorat for plaintiff that the Defendant 3 ao87 Corporation itself made one month s delay in executing the Order. This submission is also not sufficient to show any malafide act on the part of M.M.C. On the contrary, it can be said that even after issuance of Notice the Defendant Corporation did not take action of demolition though provisions of M.M.C. Act empower to take such step... 6 Thus, there is a clear prima facie finding recorded by the learned trial Judge on the basis of the photographs that demolition was carried out on 20th September 2010. Even the statement of the Advocate for the appellant recorded by the learned trial Judge prima facie shows that the demolition has been carried out on the basis of the impugned notice. 7 In view of the aforesaid finding, it is not possible to interfere with the discretionary and equitable order passed by the trial Court. Accordingly, appeal is dismissed. 8 Dismissal of the appeal will not prevent the appellant from carrying out amendment to the plaint for incorporating appropriate relief. 9 All contentions of the parties on merits of the main suit are kept open. 10 Civil application no.128 of 2011 does not survive and the same is disposed of. JUDGE