1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER ST.NO.1574 OF 2009 WITH CIVIL APPLICATION ST.NO.1575 OF 2009 Rajnikant M. Shah & ors. : Appellants versus Municipal Corporation of Greater Mumbai and others : Respondents. Shri. M.V.Holamagi for the Appellants. Smt.K.K.Soraan for the Respondent No.1-BMC Shri. M.M.Shetty for the Respondent No.2. CORAM : R.M.SAVANT, J. DATED : JANUARY 23, 2009 P.C. 1. The above Appeal from Order challenges the order dated 17th January 2009 passed by the learned Judge of the City Civil Court, Bombay by which order the Draft Notice of Motion filed by the Appellants/Plaintiffs came to be dismissed for want of prosecution. The order records that in spite of the matter being adjourned on several dates on the request of the Plaintiffs, no appearance is put up on behalf of the Plaintiffs. The matter was, therefore, lastly adjourned 2 to 17th January 2009 and was specifically placed for dismissal. On account of the non-appearance of the learned counsel for the Plaintiffs on the said date, as indicated above, the said Draft Notice of Motion came to be dismissed for want of prosecution. The impugned order also records that the original Notice of Motion is also not tendered in Court. 2. The Roznama of the said Suit produced by the learned counsel for the Respondent No.2 Shri Shetty indicates that the motion was on board on 22nd September 2008 on which date, though the appearance was put up on behalf of the Plaintiffs, the original Notice of Motion was not tendered and, therefore, at the request of the learned counsel for the Plaintiffs the matter was adjourned to 17th October 2008. Again on 17th October 2008 the matter was adjourned to 12th December 2008 as and by way of last opportunity at the request of the learned counsel for the Plaintiffs. On 12th December 2008 again there was no appearance put up on behalf of the Plaintiffs and, therefore, the matter was adjourned to 17th January 2009 for dismissal. On 17th January 2009 though the Plaintiff was present in 3 Court, the learned counsel for the Plaintiff was not available as well as the original Notice of Motion was also not tendered and, therefore, the Draft Notice of Motion was dismissed for want of prosecution. 3. In the teeth of the said Roznama, which ex-facie discloses that on numerous dates, the matter was adjourned at the request of the Plaintiffs. The order impugned, in my view, cannot be faulted with. 4. Another aspect which requires consideration is that the Plaintiffs have now filed Chamber Summons for amendment of the Plaint in the light of the Notice issued under Section 351 of the Bombay Municipal Corporation Act, 1888 by the Respondent No.1. The said Chamber Summons was heard on 30th December 2008 on which day, the City Civil Court, Bombay had passed an order, the operative part of which is to the following effect :- “The Defendant Nos.2 and 3 are directed not to demolish the entire structure of the Plaintiffs and only permitted to demolish the structure which has 4 affect due to road widening as per the order dated 5th September 2008 [both the learned counsel i.e. Shri Holamagi for the Appellants and Shri Shetty for the Respondent No.3 states that the year is wrongly mentioned as 2008 in stead of 2006]. This order of injunction will not come into operation if the Plaintiff has already taken alternative accommodation from the Defendants in lieu of the suit premises. 5. In terms of the impugned order dated 17th January 2009, the hearing of the said Chamber Summons is to take placed on 27th January 2009. As can be seen from the order dated 30th December 2008 passed on the Chamber Summons, the Plaintiffs are in fact protected in the same terms as they were protected by the order dated 5th September 2006 passed in the Draft Notice of Motion at the ad-interim stage. In view of the notice issued under Section 351 of the BMC Act, pursuant to which the said Chamber Summons has been filed by the Plaintiffs for incorporating the pleadings in respect of challenge to the said notice. The Draft Notice of Motion, in my view, had become infructuous. Therefore on the said ground also no interference is called for with the impugned order dated 17th January 5 2009. The above Appeal from Order is accordingly dismissed. 7. In view of the dismissal of the above Appeal from Order, the Civil Application Stamp No.1575 of 2009 does not survive and the same is accordingly disposed of as such. [R.M.SAVANT, J]