1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO. 478 OF 2009. with CIVIL APPLICATION NO. 1545 OF 2009 Jethalal Ratanshi Patel......Appellant versus The Mun. Corpn. Of Gr. Mumbai ........ Respondent. Mr. Vijay J. Gegde adv. for the Appellant Mr. J.J. Xavier adv. for the respondent CORAM: A. P. DESHPANDE, J. DATED : 31st MARCH, 2009. P.C.: Not on board. Mentioned. 1. The appeal is taken up for final hearing by consent of parties. 2. The appellant instituted a suit in the city civil Court at Bombay calling in question the legality and validity of the notice issued by the respondent Corporation purported to be issued under section 314 of the MMC Act which pertains to removal of the structure on the road. According to the order passed by the Asstt. Commissioner, the structure of the appellant has been found to be at a distance of 90 feet from the center of the road. The width of the road according to the Asstt. Commissioner was increased from 60 feet to 100 feet sometime in the year 1993 and thus the structure could be termed as a structure on the road and 2 thus covered by section 314. In the submission of the learned counsel for the appellant, the sanctioned development plan has been placed on record which is prepared in the year 1994 and which indicate that the width of the road is 60 feet. In that view of the matter the submission is that the trial court has committed an error in dismissing the suit more so when the respondent/corporation has chosen not to file the written statement and did not examine any witness in support of its case. The learned counsel appearing for the respondent, in this fact situation, submits that the setting aside the impugned order and remand of the matter to the trial court would sub serve the cause of justice and the respondent no. 1 needs to be granted an opportunity of filing written statement and to lead evidence in support of its case. The learned counsel appearing for the appellant joints in the request made by the learned counsel for the respondent no.1/corporation for remanding the matter for fresh adjudication in accordance with the law. In the light of the facts narrated hereinabove and in view of the concession made available by the learned counsel appearing for the respective parties, the impugned order dated 24-2-2009 is quashed and set aside. The matter is remanded back to the trial court for a denovo trial by permitting the respondent no.1/corporation to file written statement within a period of eight weeks from today. It is made clear that the trial court shall permit both the parties to substantiate their contention by leading evidence. The court 3 after recording evidene shall proceed to decide the suit in accordane with the law on its own merit. The appeal is thus allowed and disposed of in the above terms with no orders as to costs. Parties to appear before the trial court on 16-4-2009. 4. At this stage the learned counsel for the appellant points out that the stay in relation to the structure is operating and prays for its continuance till decision of the suit. The prayer is granted. (A. P. DESHPANDE, J.)