IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION FIRST APPEAL NO.353 of 2009 FIRST APPEAL NO.353 of 2009 FIRST APPEAL NO.353 of 2009 with with with CIVIL APPLICATION NO.1262 OF 2009. CIVIL APPLICATION NO.1262 OF 2009. CIVIL APPLICATION NO.1262 OF 2009. Damodar Ambikaprasad Mishra ..Appellant versus The Municipal Corporation of Gr. Bombay. ..Respondents Mr.R.D.Mishra for the appellant. Mr.Xavier for the respondent. CORAM : R.Y.GANOO, J. CORAM : R.Y.GANOO, J. CORAM : R.Y.GANOO, J. DATED : 21st April, 2009. DATED : 21st April, 2009. DATED : 21st April, 2009. P.C. 1. I am inclined to dispose of the first appeal at the stage of admission. Hence Oral notice was issued to the Corporation. Learned Advocate Mr. Xavier has waived service of the notice of the first appeal. 2. The appeal is taken up for final hearing. The respondent issued notice asking the appellant to pay the sum of Rs.15,000/- and odd by way of misuse charges. Present appellant instituted suit in the City Civil Court, being Long Cause Suit No.4850 of 2004 so as to seek an Order of -2- injunction restraining the respondents from cutting the water supply. That suit was heard and disposed of by the learned Judge of the City Civil Court by his Judgement & Decree dated 10.12.2008. Against that judgment and decree, this first appeal is filed. 3. It is noted that the appellant did not challenge the notice by which the demand to the tune of Rs.15,000/- and odd was made and that the learned Advocate who was then appearing on behalf of the appellant felt satisfied in instituting the suit simplicitor for injunction. The learned trial Judge has observed that the impugned notice calling upon the appellant to pay the money has not been challenged. It is also noticed that the Corporation has not filed written statement. It is clear that both the parties are at fault in attending to the respective matter viz, the appellants appeared to be at fault at the stage of drafting of the suit, whereas the respondents have not taken care to file written statement. 4. View taken by the learned trial Judge is otherwise right, because if the impugned notice is not challenged there is no question of notice of -3- injunction. Learned Advocate Mr. Mishra, upon instructions submitted that if the appellant is given chance to challenge the impugned notice all questions can be decided and the matter can be attended to. Learned Advocate Mr. Xavier also submitted that if given a chance, the Corporation would retort the suit which may be filed by the appellant. In such a situation, I am inclined to observe that the appellant be given a chance to challenge the impugned notice so that all the questions can be considered on merits and in such a situation the observation made by the learned trial Judge in the present judgment and decree will have to be set aside without going into the correctness thereof and all questions will be left open to be decided if the new suit is to be filed. In view of the aforesaid, I pass the following Order. ORDER i. The appellant is granted liberty to challenge the demand notice by which the appellant was directed to pay Rs.15,199/-. If such a suit is filed, the Court in which the suit is filed shall consider the suit on merits as if nothing has happened in the past in regard to the said demand. -4- The Corporation, ofcourse will be able to defend the said suit in accordance with the provisions of law. ii. The judgment and decree dated 10.12.2008 passed by the learned Judge of the City Civil Court is set aside. iii. All questions are left open. There shall be no order as to costs. iv. It is clarified that there is no injunction against the Corporation as of today. v. In view of the above, nothing survives in the civil application and the same is disposed of with no order as to costs. (R.Y.Ganoo, J.) (R.Y.Ganoo, J.) (R.Y.Ganoo, J.)