: 1 : 308-09-fa=.sxw UJ IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO. 308 OF 2009 Ramsanjeevan M. Dubey .. Appellant v/s. Bombay Municipal Corporation .. Respondent ......... Mr. S.S. Redekar for the appellant Mr. Vinod Mahadik for respondent BMC ......... CORAM : A.V. NIRGUDE, J DATE : 30th NOVEMBER,2011. P.C. : 1. This appeal filed by original plaintiff challenges the judgment and decree dated 7th February, 2009 passed by the learned Judge, City Civil Court, Greater Bombay in L.C. Suit No.1022 of 2006. The appellant plaintiff filed the suit seeking protection of due process of law in respect of a Panbidi shop erected near Uday Theater, Ghatkopar (W), Mumbai. All that the appellant plaintiff was seeking was that the Corporation should not demolish his structure without following due process of law. The : 2 : 308-09-fa=.sxw appellant plaintiff also filed an application for temporary injunction. The respondent Corporation opposed the application by filing an affidavit of their Senior Inspector, License N Ward, which stated that the suit structure falls within non hocking zone and so the Corporation is entitled to remove it without following due process of law. In this background, one has to decide as to whether the learned Judge was justified in dismissing the suit at the stage of the application for temporary injunction. In paragraph no. 5 of the impugned judgment, the learned Judge said that the Counsel for the parties gave their no objection for disposal of the suit at the interim stage. 2. The learned Counsel for the appellant disputed this and the first question is “whether the appellant’s advocate gave his no objection for disposal of the suit at interim stage ?”. Having regard to the facts of the case and the evidence of the respondent Corporation in the form of an adverse affidavit, there was no possibility of the appellants / plaintiffs advocate giving consent for disposal of the suit at the interim stage. Even the learned Counsel for the appellant disputed the correctness of that point of the judgment. So the learned Judge most probably committed error in recording what is stated in paragraph no.5. The second question is : 3 : 308-09-fa=.sxw “whether the learned Judge could have believed the statement made by the respondents witness in his affidavit without subjecting to the witness to the cross-examination?” As said above, at the interim stage, the respondents witness admitted the existence of the suit structure but asserted that the same fell within the non hocking zone and so the Corporation is entitled to remove it without following due process of law. The question of fact between the parties was whether the suit structure is situated within non hocking zone. The respondent was required to prove that the suit structure stands in non hocking zone. This question of fact apparently could not have been decided on the basis of only an affidavit. Not only the witness is required to be examined but the respondent Corporation ought to have proved even with cogent proof such as maps etc. that suit structure fell in non hocking zone. In the absence of such proof, the learned Counsel could not have dismissed the suit. The case therefore deserves to be remanded back to the trial Court by passing following order. ORDER (i) The appeal is allowed. (ii) The impugned judgment and decree is set aside. : 4 : 308-09-fa=.sxw (iii) The case is remanded back to the trial Court. The learned Judge of the trial Court shall first decide the application seeking interim relief (Notice of Motion) and shall then proceed to dispose of the suit according to the law. (iv) The order dated 6th March, 2009 passed by this Court shall continue till disposal of the interim application. (A.V. NIRGUDE, J.)