- 1 - IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER No. 273 of 2009 WITH CIVIL APPLICATION No. 323 of 2009 Pamela Rajesh Jawalkar ... Appellant Vs. The Municipal Corporation of Gr. Mumbai ... Respondent *** Mr. Shoaib I. Memon with Ms. Shama Gupta, for the appellant. Mrs. K. K. Soraan, for respondent. *** CORAM : R. V. MORE, J. DATE : JULY 10, 2009. PC :- 1. Heard the learned counsel for the respective parties. Admit. By consent of the parties, appeal is taken up for final hearing. 2. The respondent Corporation issued two separate notices on 14th August 2007 and 17th September 2007 to the appellant. The respondent Corporation directed the appellant to remove the unauthorized addition and alteration and restore the suit premises to its original state, failing which it would demolish the same. The appellant thereafter filed L. C. Suit No. 25 of 2007 - 2 - challenging those two notices. The appellant has also taken out Notice of Motion No. 26 of 2007 for interim relief of injunction restraining the Corporation from taking action in pursuance of the said two notices. By the order dated 28th September 2007, City Civil Court restrained the respondent from acting on the basis of said two notices till filing of appearance by them. It is not disputed that this interim relief is in force till today. 3. The respondent/Corporation thereafter issued notice dated 11th October, 2007 under section 351 of Bombay Municipal Corporation Act to the appellant and directed to remove the notice structure. This notice was again challenged by the appellant by filing L.C. Suit No. 248 of 2007. In this suit, Notice of Motion No. 190 of 2007 was taken out, seeking the order restraining the respondent from demolishing the notice structure. The learned City Civil Court by an order dated 17th January 2009 dismissed the abovesaid Notice of Motion, which order is impugned in the present appeal. 4. The only ground on which the appellant’s Notice of Motion No. 190 of 2007 was dismissed is that already injunction order is in force, protecting the notice structure, passed in the earlier Notice of Motion No. 26 of 2007 filed in L.C. Suit No.25 of 2007. The reason given by the learned City Civil Court for dismissing the appeallant’s Notice of Motion, cannot be sustained. The earlier suit was filed by the appellant challenging the notices issued by the respondent on 14th August 2007 and 17th September 2007. Both the notices does not disclose prohibition under which - 3 - they were issued. The Corporation is duty bound to follow proper procedure, contemplated under section 351 of the Bombay Municipal Corporation Act, namely to give notice before ordering demolition of any unauthorized structure. It is not disputed that respondent at the time of filing the earlier suit not issued with notice under section 351 of the Act. However, as by the abovesaid two notices, the appellant is directed to remove the unauthorized structure, the appellant had no alternative but to approach the City Civil Court, challenging the said notices, as he apprehended the demolition by the respondent, without following due procedure of law. The learned City Civil Court taking into consideration all aspects rightly directed Corporation not to take any action, pursuant to the said two notices. 5. The respondent Corporation on realizing their own mistake, issued a notice to appellant under section 351 of the Act on 11th October 2007 and thereby directed the appellant to demolish the alleged unauthorized structure. The appellant by filing fresh suit L.C. Suit No. 248 of 2007 challenged this notice and also filed Notice of Motion No. 190 of 2007 for interim relief. The second suit filed by the appellant is based on totally different cause of action, in as much as fresh notice under section 351 of the Act was issued by the respondent Corporation. This suit cannot be said to have barred under Order 2, Rule 2 of the Civil Procedure Code, I am fortified by the decisions of the Apex Court in the case of -(i) Sidramappa Vs. Rajashetti [ AIR 1970 Supreme Court 1059]; (ii) Arjun Lal Gupta & Ors. Vs. Mriganka Mohan Sur & - 4 - Ors. [AIR 1975 Supreme Court 207], wherein it is held that if cause of action for subsequent suit is different from the cause of action in earlier suit, then there is no bar under Order 2, Rule 2 of the Civil Procedure Code. In the background of abovesaid discussion, I am of the view that dismissal of appellant’s Notice of Motion on the ground of pendency of earlier suit or operation of interim order passed therein, is not correct. The appellant’s Notice of Motion will have to be heard on merits. I, therefore, dispose of the appeal by passing the following order. ORDER (i) Impugned order is quashed and set aside. (ii) Matter is remanded back to the lower Court to decide the appellant’s Notice of Motion No. 190 of 2007 afresh, in the light of observations made above. (iii) The said Notice of Motion shall be heard and disposed of as expeditiously as possible and preferably within a period of six months from the date of receipt of this order. (iv) Till disposal of the said Notice of Motion, both the parties shall maintain status-quo in respect of the notice structure. (v) In view of disposal of the present appeal, Civil Application No. 323 of 2009 does not survive for consideration and the same is accordingly disposed of. Sd/- [ R. V. MORE, J.]