1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.8321 OF 2009 Shekhar N. Shetty .. Petitioner versus Municipal Corporation of Gr.Bombay .. Respondent Mr.Anil Singh alongwith Mr.Atul Singh i/by Mr.D.R.Shah for the petitioner. Mr.M.M.Malvankar for the respondent No.1. Mr.Niranjan P. Pandit with Mrs.Dhun A. Chhapgar i/by M/s.D.J.Kamdin & Co for the respondent No.2. CORAM : A.S.OKA, J. DATE : 5th October 2009. P.C: . The petitioner is the original plaintiff. The petitioner filed a suit for declaration that a notice issued by the 1st respondent under section 351 of the Bombay Municipal Corporation Act, 1888 is illegal and bad in law. A notice of motion was taken out by the petitioner-plaintiff at a stage when the suit is pending for cross-examination of the petitioner. In the said notice of motion a contention was raised that the 1st respondent-Municipal Corporation has not considered the reply filed by the petitioner to the notice under the said Act of 1888 and has not passed any order after considering the reply. The contention raised by the petitioner in the notice of motion was that in view of the decision of a Division Bench in the case of Sopan Maruti Thopate & Ors. Vs. Pune Municipal Corporation [1996 (1) Maharashtra Law Journal 963], the 1st respondent was under an obligation to consider the 2 reply and to pass an order. The said notice of motion has been dismissed by the impugned order. 2. The learned counsel appearing for the petitioner submitted that what was pointed out by the petitioner to the trial Court was the law laid down by this Court which enjoins the 1st respondent-Corporation to consider the reply by the petitioner to the notice under section 351 and to pass an appropriate order thereon. He submitted that infact the 1st respondent ought to have come out with a stand that appropriate order will be passed on the show cause notice. He submitted that the law requires the 1st respondent- Corporation to pass an order on the show cause notice and therefore the trial Court ought to have directed the 1st respondent to pass order on the show cause notice in terms of the settled law pronounced by the Division Bench of this Court. He submitted that at any stage of the suit, the said order could have been passed by the trial Court and therefore the trial Court has committed an error by not granting the relief prayed for in the notice of motion. 3. I have given careful consideration to the submissions. The notice of motion was taken out by the petitioner plaintiff in a suit of the year 1996 after filing of the affidavit-in-lieu of examination-in-chief and after the case was adjourned for his cross-examination. The challenge in the suit is to the show cause notice under section 351 of the said Act of 1888. Only after the suit filed in the year 1996 reached the stage of recording of evidence, the 3 petitioner came out with the notice of motion. The learned trial Judge was justified in not entertaining the notice of motion at the stage at which the same was filed. After the suit is heard, the trial Court can always pass appropriate order. If the petitioner plaintiff makes out a case on merits, the trial Court can always pass an order directing the 1st respondent-corporation to pass an order on the show cause notice. However, at the stage at which the notice of motion was filed, the trial Court has rightly rejected the same. The learned trial Judge has not finally rejected the prayer made by the petitioner. What has been observed by the learned trial Judge is that at this stage it will not be just and proper to remand the matter to the competent authority for passing the order. Thus, the issue has been kept open. 4. This is not a fit case where interference can be made in writ jurisdiction of this Court under Article 227 of the Constitution of India. By keeping open all contentions of the parties on merits of the suit, the writ petition is rejected. (A.S.OKA,J)