1 pps IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO. 2426 OF 2011 WITH CIVIL APPLICATION NO.5151 OF 2011 Rammurat Ramlakhan Yadav ...Appellant Versus Municipal Corporation of Gr.Mumbai ...Respondent Mr.P.S.Dani i/b. Ajay Patil & Aslam Malik for the Appellant Mr.Vinod Mahadik for the Respondent CORAM:- A.V.NIRGUDE J. DATED:- 13th DECEMBER, 2011. P.C. 1. By consent of the learned Advocates appearing for the parties, the appeal is taken up for hearing for final disposal. The appeal can be disposed of at this admission stage. 2. The appeal is filed against the Order dated 16.11.2011 passed by the learned Judge, City Civil Court, Gr. Bombay in the Small Cause Suit No.2533 of 2011 dismissing the suit while hearing the application for ad-interim relief. The appellant was the plaintiff in the lower court. 2 He filed this suit for seeking protection to a structure from getting demolished without following due process of law. In other words, he came to the court with a case that he has erected the structure long back and the Corporation should not demolish it without following due process of law. On the first date of hearing the learned Counsel appearing for the appellant sought an ad-interim order of temporary injunction in the notice of motion taken out in the suit. But the learned Judge having regard to the facts of the case held that there is no cause of action for the suit and so he said that the suit is liable to be dismissed ‘in limini’ and then the impugned order was passed dismissing the suit as well as the notice of motion. The learned Judge, probably ignored the elementary principles of Civil Procedure . When he heard the application seeking ad-interim relief on the notice of motion he could have at the most refused to pass a favourable order to the appellant giving short reasons which could have included even his finding that there is probably no cause of action for the suit etc., but he could not have dismissed the suit and the notice of motion at the threshold. The suit cannot be dismissed for want of cause of action because Order 7 Rule 11 provides a procedure as to what the Judge would do if he comes across a plaint 3 without cause of action. He can reject the plaint. Rejection of plaint is certainly different than dismissal of suit. So the impugned order is clearly illegal. I am therefore inclined to set aside the same. I am also inclined to reinstate the notice of motion taken out by the appellant in the suit. The learned Judge should be directed to re-hear the applicant even for grant of ad-interim relief. 3. The appeal is allowed. The impugned order is set aside. The suit as well as the notice of motion are restored to the file. The learned Judge shall hear the appellant plaintiff if he seeks ad-interim relief, provided the structure is in existence and not demolished in the meantime. 4. Parties to act on the authenticated copy of this order. In view of dismissal of the appeal, civil application does not survive and the same is also dismissed. (A.V.NIRGUDE, J.)