1 Bsb IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO. 1205 OF 2009 ALONG WITH CIVIL APPLICATION NO. 1506 & 1507 OF 2009 Rama Samy Palany Samy ... Appellant v/s Mumbai Municipal Corporation of Greater Mumbai ... Respondents Mr.Bharat Joshi for the appellant. Mrs.K.K.Soraan for the Corporation. Mr.Mustafa Kachwala for the applicant in C.A.A. No.1506 of 2009. CORAM: SMT.NISHITA MHATRE, J. DATED: 1ST DECEMBER, 2009 P.C.: 1. This appeal from order challenges the order passed on 31.10.2009 in which ad-interim orders were refused by the Trial Court. The appellants have challenged the notice issued under Section 53(1) of the M.R.T.P. Act. The Trial Court has held that, prima facie it has no jurisdiction to decide the dispute between the parties as its jurisdiction was 2 barred under Section 149 of the M.R.T.P. Act. 2. In a similar matter i.e. Appeal from Order No.1144 of 2009, I have considered the issues raised in the present appeal. The appellant in this case and the appellants in the Appeal from Order No.1144 of 2009 were issued notices under section 53(1) of the M.R.T.P. Act for illegally opening the door to the terrace of a row house which is situated between the row houses owned and occupied by the two appellants. In my opinion, therefore, the order passed in Appeal from Order No.1144 of 2009 must follow in this matter as well. The learned advocate for the appellants in the present case tried to distinguish the two appeals by contending that the appellant in the present case has an agreement in which it is mentioned that he is entitled to use the terrace. However, in my opinion, the merits of this submission can be considered when the notice of motion is decided. 3. In my view, once the Trial Court frames an issue under Section 9A of the Code of Civil Procedure with respect to its jurisdiction and decides it in favour of the appellants, the Trial Court can always consider whether the interim relief should be granted since the notice of motion is pending. 4. Accordingly an issue shall be framed by the Trial Court 3 with respect to its jurisdiction under Section 9A of the Code of Civil Procedure. That issue will be decided within two weeks from today. The refusal to grant interim relief, in my opinion, does not warrant any interference from this Court. 5. Appeal from order stands dismissed along with the civil applications. 6. The Corporation will not barricade the door which leads to the terrace, which according to the Corporation, has been illegally put up by the appellant. However, the appellant shall not use the terrace during the aforesaid period of two weeks. 7. The Trial Court shall decide the issue of jurisdiction uninfluenced by any observations made by it in the impugned order. The Trial Court will also decide the issue of interim relief thereafter without being influenced by its observations in the impugned order as well as this order. ..... 4