1 HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION. FIRST APPEAL NO.312/2009 WITH CIVIL APPLICATION NO.1161/2009. Suresh Vishwanath Gupta. ..Appellant -VERSUS- The Municipal Corporation of Greater Mumbai. ..Respondent ......... Mr.R.A.Thorat i/b Mr.B.P.Shukla, Advocate for the appellant. Mr.J.J.Xavier, Advocate for the respondent. .......... CORAM : A.P.DESHPANDE, J. DATED : 19th MARCH, 2009. P.C. : 1. The appeal taken up for final disposal with the consent of parties. 2. The appellant is the original plaintiff who instituted a suit before the City Civil Court claiming relief of perpetual injunction seeking to restrain the respondent/Corporation and it' s officers and servants from demolishing the suit premises which constituted a wooden stall used for sale of “Vada-Pav”. The Corporation did not file the written statement and has also not examined any witness. However, when the notice of motion was taken up, the Corporation 2 had filed it' s reply thereto setting up a plea that the business carried on by the plaintiff is in non hawking zone, hence, the plaintiff cannot claim the relief of injunction in view of the Supreme Court judgment. It would not be out of place to point out that the plaintiff had filed the counter to the reply filed by the Corporation disputing the fact that the plaintiff is allegedly carrying on the business in non hawking zone. 3. The learned counsel for the appellant submits that the appellant/plaintiff has been non suited on the ground that the plaintiff is carrying on the business at the suit premises and that the suit premises falls in non hawking zone. The submission is that there is no evidence on record to conclude in favour of the Corporation that the plaintiff's premises and his business are falling in non hawking zone. 4. The learned counsel for the respondent/Corporation submits that he has no objection if the impugned judgment and decree is quashed and set aside and the matter is remanded back to the Trial Court permitting the respondent to file the written statement and lead the evidence in support of it' s contention that the plaintiff is carrying on business in non hawking zone. 5. The learned counsel for the appellant has no objection in that regard. 6. In view of the concessions made available by the learned counsel appearing for both the parties, the present appeal is allowed. 3 The impugned judgment and decree passed by the Trial Court dated 07.02.2009 in L.C. Suit No.1455/2006 is quashed and set aside. The matter is remanded back to the Trial Court for denovo trial and decision on merits. The parties shall be permitted to lead the evidence in support of their cases. The respondent/Corporation shall be permitted to file the written statement. The written statement shall be filed by the respondent within eight weeks from today and the Trial Court, thereafter, may proceed to record the evidence and decide the suit in accordance with law after affording opportunity of hearing to both the parties. The parties to appear before the Trial Court on 02nd April 2009. 7. The appeal, thus, is allowed and disposed of. No orders as to costs. 8. The status-quo as of now shall continue till the disposal of the suit. This order of status-quo would not come in the way of Corporation if the Corporation wants to remove the premises after following due process of law. 9. In view of disposal of the appeal, the Civil Application does not survive and the same is also disposed of. JUDGE