1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO.927 OF 2009 WITH CIVIL APPLICATION NO.1158 OF 2009 Sudhir Diwan ..Appellant V/s Mohan M.Mirchandani & Ors. ..Respondents ---- Mr.Sudhir Diwan party in person. Mr.Prem S.Gidwani for the respondent no.1. Mrs.K.K.Soraan for the B.M.C. ---- Coram : R.S.MOHITE,J Date : 15th September, 2009. PC 1 This is an appeal filed by the appellant who is the original defendant no.2 impugning two separate orders passed by the City Civil Court. One is an order passed by the City Civil Court on 13.7.2009 on a motion filed by defendant no.2 for dismissing the suit and vacating the interim order. This motion is filed on the ground that the plaintiff has filed the suit and obtained interim relief by suppressing several facts and by making mis-leading statements. In so far as dismissal of the suit is concerned, in my view, it is not enough to merely contend that mis-leading statements have been made. It has to be proved through evidence. Suit cannot be dismissed merely on making of allegations by filing a motion. In so far as question relating to obtaining interim relief by making mis-leading statement is concerned, defendant no.2 has also challenged the order granting interim relief which has 2 been passed on 6.7.2009 on the plaintiff’s Notice of Motion. The plaintiff’s suit has been filed impugning an order passed by the B.M.C in proceedings pursuant to a notice under Section 351. The order of the B.M.C under Section 351 calls upon the plaintiff to demolish a wall on the 11th floor of the building on the footing that the said wall is unauthorised. It is seen that before the trial Court the plaintiff produced a sanctioned plan of the building and as observed by the trial Court the sanction plan indicates that a wall was authorised on each of the floors. It is contended that wall was actually not erected on all the floors. But in my view, that does not change the situation vis-a-vis the legality of the B.M.C order. It was sought to be contended that the approved plan is not a final plan and according to the appellant there has to be another plan required to be submitted at the stage of grant of an occupation under section 351-A. He is unable to satisfy me in this regard. In the circumstances, in my view, this is not a fit case to interfere with. Appeal from Order stands rejected. CIVIL APPLICATION NO.1158 OF 2009 As the main appeal is rejected, Civil Application does not survive and stands disposed off accordingly. (R.S.MOHITE,J) 3