Lsp IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION WRIT PETITION NO. 2376 of 2009 Madhukar A. Chandrachud & ors. ...Petitioner v/s. Bombay Municipal Corporation & ors. ...Respondents Mr. Anil R.Mishra for the petitioner. M.M.Malwankar for respondent no.1 BMC. Vandana Padwal for respondents. CORAM CORAM CORAM : A.M.KHANWILKAR,J. : A.M.KHANWILKAR,J. : A.M.KHANWILKAR,J. DATED DATED DATED : MARCH 13, 2009 : MARCH 13, 2009 : MARCH 13, 2009 P.C. . Heard Counsel for the parties. 2. Rule. Rule made returnable forthwith by consent. 3. Mr. Malwankar waives notice for respondent no.1 BMC and Ms. Vandana Padwal waives notice for other respondents. 4. As short question is involved, petition is taken up for final disposal forthwith, by consent. 5. This Petition under Article 227 of the Constitution of India takes exception to the order dated 4-2-2009 passed by the Bombay City Civil Court at Bombay in LC Suit No. 770/2004 below Exhibit 9. By the said application, the plaintiff requested the trial Court to frame additional issue in the following terms:- 2 "Does the Plaintiff prove that the impugned notice is issued at the instance of defendant no.2 with malafide intention?" 6. The Court below by the impugned order has observed that it is unnecessary to frame this additional issue as it is covered by issue no.1. Issue no.1 already framed reads thus: "Whether plaintiff proves that Suit Notice dated 08/08/2003 and order dated 30/01/2004 are illegal?" 7. The view recorded by the trial Court is manifestly wrong. The question as to whether the action under Section 351 is malafide and at the behest of third party using machinery of the Corporation is a matter which is independent of the question of legality of the notice under Section 351 as such. More so, in the present case, there is clear averment in the plaint in Paragraph 9(a) & ((g) to the effect that proposed action under Section 351 was malafide and at the behest of Respondent No. 2. In view of the said case made out in the plaint, the proposed additional issue arises for consideration. 8. Accordingly, the impugned order is set aside and 3 instead the application Exhibit 9 referred by the Petitioner is allowed with direction to the Trial Court to frame additional issue reproduced in the earlier part of this order and proceed with the trial in accordance with law. 9. Rule is made absolute in above terms with no order as to costs. [A.M.KHANWILKAR,J.] [A.M.KHANWILKAR,J.] [A.M.KHANWILKAR,J.]