1 1 fa 1048.10.doc k IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO. 1048 OF 2010 WITH CIVIL APPLICATION NO.2342 OF 2010 WITH FIRST APPEAL NO.1048 OF 2010 Municipal Corporation of Greater Mumbai .. Appellant. Vs. Sarwar Hussain Tufail Husain .. Respondent. Mr.S.V.Kamdar, Sr.Counsel with Mr.Anil Singh i/b Mr. J.J.Xevier with Mr.Vinod Mahadik for the appellant/BMC. Mr.R.A.Thorat i/b Mr.P.J.Thorat for the respondent. CORAM : D.B.BHOSALE, J. DATED : 12/10/2010. PC: 1 Heard Mr. Kamdar, learned senior counsel for the Appellant and Mr.Thorat, learned counsel for the Respondent. 2 This Appeal by the Municipal Corporation is directed against the judgment and order dated 06.01.2010 passed by the City Civil Court in L.C.Suit No. 1518 of 2008. The suit, filed by the respondent-plaintiff, has been decreed by the impugned judgment. Mr.Thorat, learned counsel for the Respondent- 2 1 fa 1048.10.doc Plaintiff submits that he has written instructions from his client to withdraw the suit itself in view of the fact that during pendency of L.C.Suit No.1518 of 2008, the Appellant-Municipal Corporation issued notice under section 354-A of the Mumbai Municipal Corporation Act and that the respondent has filed a Suit, challenging the said notice, being L.C.Suit No.1661 of 2008. The suit is pending before the City Civil Court. He further submits that they have also taken out Notice of Motion No.1033 of 2008 for interim order in the said suit which is pending for hearing before that court. In so far as withdrawal of the suit is concern, Mr. Kamdar, learned senior counsel for the Appellant- Municipal Corporation submits that he has no objection for allowing to withdraw the present suit and for setting aside the judgment impugned in the Appeal. In view of the submissions of the learned counsel for the Parties, the Respondent-Plaintiff is allowed to withdraw L.C.Suit No.1518 of 2008, and the suit is accordingly disposed of as withdrawn. As a consequence thereof, the judgment and order dated 06.01.2010 impugned in the present Appeal is set aside. 3 It is open to the Respondent-Plaintiff to seek interim relief in Notice of Motion No. 1033 of 2008 filed in L.C.Suit No.1661 of 2008 within a period of two weeks from today. 3 1 fa 1048.10.doc 4 At this stage Mr. Thorat, learned counsel for the Respondent seeks two weeks protection to enable the Respondent to apply for ad-interim/interim order in the Notice of Motion. This prayer is opposed by Mr.Kamdar, learned senior counsel for the Appellant-Municipal Corporation. However, having considered the fact of withdrawal of the suit (L.C.Suit No.1518 of 2008) itself, I am inclined to grant protection as prayed. The Appellant-Municipal Corporation shall not take any coercive action for a period of two weeks from today in respect of the suit structure. 5 It is made clear while granting the protection of two weeks. I have not examined the merits of the case and the City Civil Court while dealing with the Notice of Motion shall pass order on merits and uninfluenced by this order. 6 It is open to the Appellant-Municipal Corporation to file their reply/written statement, if they have not filed so far to the Notice of Motion, within 10-12 days from today, if they so desire. It is needless to express that the City Civil Court shall decide the Notice of Motion expeditiously. (D.B.Bhosale, J.)