1 Bsb IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO. 1096 OF 2009 ALONGWITH CIVIL APPLICATION NO. 1349 OF 2009 Harialal G. Shah ... Appellant v/s 1. Municipal Corpn. Of Gr. Mumbai & anr. ... Respondents Mr.A.J.Dholakia i/by Mrs.Neela A. Dholakia for the appellant. Smt.K.K.Saraan for the Corporation. CORAM: SMT.NISHITA MHATRE, J. DATED: 4TH NOVEMBER, 2009 P.C.: 1. The appeal has been preferred against the order passed by the Trial Court on 7.10.2009. The grievance of the learned advocate appearing for the appellant is that the Trial Court has dismissed the notice of motion without considering the civil application on merits. The prayer in the notice of motion is worded as follows:- “Pending hearing and final disposal of this suit, this 2 Hon’ble Court be pleased to grant temporary order of injunction against the defendants, restraining them, their agents, servants and/or any one claiming through them from entering into the suit premises i.e. flat No. 6B, situated at Vireshwar Mahal Society, 3rd floor, V.K.Khandekar Marg, Vile Parle (E), Mumbai – 400 057 and acting in pursuance of the notice issued u/s 488 of BMC Act dated 7.11.07 and demolishing the alleged unauthorized work of enclosing the balcony of the suit premises and fixing sliding window or any part thereof, in any manner whatsoever.” Thus, obviously, the prayer in the notice of motion was for an injunction restraining the Corporation from demolishing the suit structure pending the hearing and final disposal of the suit. Merely because the plaintiff had added the words “and acting in persons, etc......”, would not necessarily mean that the plaintiff is not entitled to any relief. There must be some discussion on merits as to why the interim relief ought not to be granted. 2. In my view, therefore, the impugned order must be set aside and the notice of motion must be re-heard. 3. The Corporation has not filed the reply to the notice of motion. Reply shall be filed within four weeks from today. 4. Accordingly, the appeal and the civil application are disposed of with the following order :- 3 (i) The impugned order is set aside. (ii) The Corporation will file reply within four weeks from today. Notice of motion shall be heard on merits thereafter. (iii) Till then, the ad-interim stay which was granted earlier to continue. ..... 4