1 53 fa.712.11 ndm IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO. 712 OF 2011 Chabinath Ramgarib Sharma. ... Appellant Versus The Municipal Corporation of Greater Mumbai. ... Respondent ----- Mr. Induprakash Tripathi i/b Mr. C.K.Tripathi for the Appellant. Mr. Vinod Mahadik for the Respondent – BMC. ----- CORAM : A.S.OKA, J. DATE : 05 th July, 2011. ORAL JUDGMENT: 1 This Court has passed an order directing disposal of the appeal at the stage of admission. 2 The Appellant is the original Plaintiff. The Appellant filed a suit for injunction against the Respondent – Corporation restraining the Respondent – Corporation from demolishing or pulling down the suit premises without following due process of law. 2 53 fa.712.11 3 By the impugned order, the plaint has been rejected by passing the following order: “30.03.2011 Coram: HHJ: Shri. V.K.Shewale, C.R. No.7 1688 / 10 Adv. L.K.Tripahi for plff. Present. Adv. Mrs. Basudkar for Deft./ MMc present The plff was called upon to show cause why suit be not dismissed on the premises of supplying totally incorrect description of the suit property in comparison to RV record and extract produced at Pg. No.23. As per the pleading suit structure adms. 30x50 ft.=1500 sq.ft. as again this as per the RV shared was adms. 89.32 sq.mtrs & loft 7.40 sq.mtrs = 961 & 80 sq. ft. reply. However, no cause of action to the suit. Hence the plaint stand rejected. N / M No. 2458 / 10 stand disposed off.” 4 After having heard the learned counsel appearing for the parties, I am of the view that the impugned order is illegal. Even assuming that the Appellant has not incorporated the correct description of the suit property in the plaint, that was no ground to come to the conclusion that there is no cause of action for filing the suit. It appears that the learned trial Judge has relied upon clause (a) of Rule 11 of Order 3 53 fa.712.11 VII of the Code of Civil Procedure, 1908 (hereinafter referred to as “the said Code”). The plaint can be rejected under the said clause if the same does not disclose the cause of action. In the present case, the cause of action pleaded is apprehension/ threat that the suit structure will be demolished without following due process of law. The defect of want of correct description may affect the merits of the suit in a given case. Suffice it to say that the plaint could not have been rejected on the ground of want of cause of action. The power to reject the plaint cannot be exercised in such a casual manner. 5 The issue whether the Appellant has correctly described the suit structure always remains open, which can be considered by the trial Court at the time of hearing of the Notice of Motion and at the time of final hearing of the suit. 6 The learned counsel appearing for the Appellant stated that the impugned order has been passed during the pendency of the Notice of Motion for temporary injunction. Hence, the said Notice of Motion will 4 53 fa.712.11 have to be restored. 7 Hence, I pass the following order: i. The impugned judgment and decree is quashed and set aside and the L.C. Suit No.1688 of 2010 is restored to the file of the trial Court ; ii. The Notice of Motion for temporary injunction is also restored and the ad-interim relief granted by this Court will continue to operate till the disposal of the Notice of Motion ; iii. The Notice of Motion shall be disposed of expeditiously ; iv. The issue whether the Appellant has correctly described the suit structure will remain open, which can be agitated by the Respondent – Corporation at the time of hearing of the Notice of Motion and/or at the time of final hearing of the suit ; v. Appeal is partly allowed on above terms with no order as to costs ; vi. Civil Application No.1340 of 2011 does not survive and the same is disposed of. [ A.S.OKA, J ]