1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.9235 OF 2003 Municipal Corporation of Greater Mumbai ..Petitioner. Vs. Abdul Rashid ohamed ..Respondent. .... Ms. S.M. Modale h/f Ms. V.K. Khatu for the Petitioner. CORAM : DR.D.Y.CHANDRACHUD, J. 16th March, 2006. P.C. : 1. The Respondent has been served and an affidavit in reply has been filed to these proceedings. 2. The present Petition arises out of an order dated 30th October, 2003 passed by the City Civil Court on an application moved by the Municipal Corporation for taking its written statement on record. The application has been dismissed by the impugned order. 3. Briefly stated the facts are that the Municipal Corporation of Greater Mumbai issued a notice under Section 354-A of the 2 Municipal Corporation Act, 1888 to the Respondent in respect of the unauthorized construction of a structure admeasuring 40 x 30 ft. and with the height of 16 ft. on 4th February, 2002. The Respondent replied to the notice on 6th February, 2002. The structure came to be demolished by the municipal staff. The Respondent instituted a suit before the City Civil Court being Suit 1247 of 2002 in which it would appear that certain interim relief has been granted in the Motion taken out by the Respondent. The Motion was made absolute on 1st July, 2002 and the matter was adjourned for filing of a written statement. In the reply filed by the Respondent, it has been stated that the Municipal Corporation was duly served with the writ of summons on 14th March, 2002. Since the Municipal Corporation had not filed its written statement though the matter was adjourned from time to time, on 2nd August, 2003 the suit was ordered to be heard without the written statement. The evidence of the Plaintiff and his cross examination has been concluded and the Municipal Corporation was directed to lead evidence, if any, in support of its case. The Municipal Corporation having not done so, it has been stated that the matter was posted for arguments and was partly argued. On 29th October, 2003 an application was moved on behalf of the Municipal Corporation for 3 permission to file its written statement. 4. The Learned Trial Judge is justified in holding that the Municipal Corporation ought to have filed a written statement at the stage when the suit was kept for filing of the written statement. However, in a matter such as the present, it would, in my view, have been appropriate if the Municipal Corporation was allowed to file a written statement subject to an order saddling it with the payment of costs. There is no reason why the Municipal Corporation should be shut out from defending the suit particularly when the allegation is in regard to the construction of an unauthorized structure. In the circumstances, the order of the Learned Trial Judge should, in my view, be interfered with in the exercise of the jurisdiction under Article 227, particularly since there is liable to be a manifest miscarriage of justice in the absence of the Learned Trial Judge being apprised of all the facts relating to the construction which is alleged to have been put up by the Respondent. The Petition is accordingly allowed and the impugned order of the Learned Trial Judge dated 30th October, 2003 is quashed and set aside. 4 5. Counsel appearing for the Petitioner is unable to state specifically before the Court as to whether the suit before the City Civil Court is still pending. In the circumstances, in the event, that the suit has not already been disposed of by the City Civil Court, the Petitioner shall file its written statement before the City Civil Court within a period of four weeks from today, subject to the payment of costs quantified at Rs.2,500/- to the Respondent which shall be a condition precedent. In the event, that the suit has already been disposed of in the absence of the written statement of the Petitioner, it is needless to add that it would be open to the Petitioner to challenge the final decree, should it become necessary to do so on all available grounds. The Petition is accordingly disposed of. There shall be no order as to costs.