86. fa 121-83.doc RMA IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION . FIRST APPEAL NO 121 OF 1983 Municipal Corporation of Greater Mumbai.. Appellant Vs ( ) Shantila Muldeo Jani since deceased through his legal heirs .. Respondents . Mr Vinod Mahadik for the Appellant . . . Mr D S Sawant for the Respondent : CORAM . . , . A S OKA J : DATE 7th , . FEBRUARY 2011 : JUDGMENT 1. - The appellant Municipal Corporation of Greater Mumbai has challenged the judgment and decree dated 21st , December 1982 passed by the learned Judge of the City Civil Court in a . suit filed by the original respondent 2. . The original respondent is the original plaintiff The suit was filed for challenging the notice dated 30th March 1981 under Section 351 of the Mumbai Municipal Corporation Act 1888 ( ‘ ’) hereinafter referred to as the said Act as well as notice dated 27th . April 1981 under Section 488 of the said Act It - appears that written statement was filed by the appellant 1 86. fa 121-83.doc Corporation on 23rd December 1981 by which the suit was . contested 3. . Notice of Motion No 3015 of 1981 was taken out by the original . plaintiff for temporary injunction The said Notice of Motion was decided by order dated 4th . March 1982 The Notice of Motion ( ) was made absolute in terms of prayer clause e thereby . granting temporary injunction The order recorded in the roznama of the suit on 4th : March 1982 reads thus " : Coram HIS HONOUR THE PRINCIPAL JUDGE THAKAR . . . Mr S R Rajguru for the Plaintiff . . . Mr P B Karhadkar for the Defendants Order dictated in open court for records separately . recorded The Notice of Motion is made absolute in ( ) . terms of prayer a to the Notice of Motion There . shall be no order as to costs By consent suit to - - appear on the board of this Court on 5 4 82 for hearing meanwhile parties to complete discovery ." and Inspection . 4 The impugned decree has been passed on the basis of the : following order which reads thus " , , In view of the orders dated 4th March 1982 passed on ' . , the Plaintiff s Notice of Motion No 3015 dated 29th June 2 86. fa 121-83.doc , 1981 all that now remains to be done is to pass a decree ( ) ( ). in terms of prayers a and b Decree in terms of ( ) ( ). . prayers a and b No order as to costs - . , Later Mrs Chheda states that time to the all of . documents to be first given before any order is passed . , The request made by Mrs Chheda is rejected in view of . , the statement made by Mr Karhadkar that old records of ." the Bombay Municipal Corporation are not available 5. Perusal of the roznama shows that the issues were not settled . and the suit was not even ready for final hearing From the , record I have perused the order dated 4th March 1982 passed . . by the learned Judge on the Notice of Motion NO 3015 of 1981 The said order has a result of disposing of only the Notice of . - Motion for temporary injunction Only prima facie findings . have been recorded in the said order On the basis of the said , order the main suit could not have been decreed in as much as . , even the issues were not settled To say the least the impugned judgment and decree dated 5th April 1982 is . completely illegal and deserves to be quashed and set aside . 6 , : Hence I pass the following order O R D E R . 1 The impugned judgment and decree is quashed and set 3 86. fa 121-83.doc . . . aside and L C Suit No 3667 of 1981 is restored to file of . City Civil Court at Mumbai . 2 The learned Principal Judge shall expeditiously assign the . suit to appropriate Court . 3 , After record is received by the trial Court it will be open for the respondents to carry out a formal amendment to the plaint for bringing their names on record in place of original . plaintiff . 4 The trial Court will thereafter proceed to settle the issues . and decide the suit in accordance with law . 5 , As a consequence of restoration of the suit it is obvious that . the interim order passed on Notice of Motion No 3015 of . 1981 also stand restored . 6 The suit shall be decided as expeditiously as possible and . preferably before the end of October 2011 . 7 All contentions of the parties on merits of the suit are kept . open . 8 The appeal is partly allowed in above terms with no order as . to costs . . , . [ A S OKA J ] 4 86. fa 121-83.doc 5