1 fa1704 ssp IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION FIRST APPEAL NO.1704 OF 2010 Ibrahim Noor Mohammed Batatawala ...Appellant vs. Municipal Corporation of Greater Mumbai ...Respondent Ms Geeta Shastri i/b M/s.Khilani & Co. for the appellant Ms K.K.Soraan for the respondent CORAM : A.S.OKA,J. DATE : APRIL 11,2011 P.C.: 1 Heard learned counsel for the appellant and the learned counsel for the respondent. Considering the nature of the impugned Judgment and order, appeal is forthwith taken up for final disposal. 2 The appellant-plaintiff filed a suit against the respondent for declaration that the notice issued by the respondent under section 314 of the Mumbai Municipal Corporation Act,1888 was malafide, bad in law and not enforceable. Perpetual injunction was claimed in the suit restraining the respondent from taking action on the basis of the said notice under section 314 of the said Act. 3 It appears that at the time of hearing of the notice of motion for temporary injunction, impugned order has been passed by which the suit itself has been dismissed as premature. Relevant part of the order reads thus : On perusal of the contents of notice dated 1.4.2008 2 fa1704 it clearly shows that the plaintiff called upon to show cause within 7 days to prove authorization of notice structure, failing which the said structure will be demolished. However, if the documents submitted by the plaintiff does not prove the structure authorised in that event the competent authority is required to give reason. But in the present case as on today no order has been passed. Therefore, in my view as on today the plaintiff has no cause of action to file present suit. In view of above, I proceed to pass the following order : ORDER 1. Suit Exh.1 is dismissed as premature. The competent authority is hereby directed to pass the appropriate order within a period of eight weeks. 4 No reasons are required to be assigned for recording a finding that the suit could not have been dismissed in this fashion at the stage when only notice of motion for temporary injunction was placed for hearing. The suit was not set down for hearing. The case of the appellant was that though reply to the notice under section 314 of the said Act was submitted by the appellant, there was no order passed on the said notice by the respondent. There is no finding recorded in the impugned order that either an order has been already passed by the respondent or that the respondent was willing to pass an order. Therefore, by no stretch of imagination, the trial Court could have come to the conclusion that there was no cause of action for filing the suit. Therefore, the impugned order will have to be quashed and set aside and the suit will have to be remanded to the trial Court. 3 fa1704 5 Hence, I pass the following order : i) Impugned order of dismissal of the suit is quashed and set aside and the L.C.Suit no.938 of 2008 together with the Notice of Motion therein is restored to the file of the trial Court. ii)Notice of motion for injunction shall be heard afresh. If the respondent-Corporation has not filed any reply to the said notice of motion, the trial Court will grant a reasonable time to the respondent to file a reply. iii)Notice of motion shall be decided on its own merits. iv)Till the disposal of the notice of motion, ad- interim relief which was operating till the date of passing the impugned order will continue to operate. v) It is made clear that this order will not prevent the respondent-Corporation from passing an appropriate order on the basis of the notice under section 314 of the said Act after considering the reply filed by the appellant. vi)All contentions of the parties on merits of the suit are expressly kept open vii)Appeal is allowed on above terms with no order as to costs. viii)Civil Application no.397 of 2011 does not survive and the same is disposed of. JUDGE