IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO.1323 OF 2008 WITH CIVIL APPLICATION NO. 1620 OF 2008. Mohammed Hasan Nemayandah...... ...... Appellant V/s Mun. Corporation of Gr. Mumbai & Anr. ...... ...... Respondents. Mr.Navin Parekh and Mr.Mohit Arora i/by M/s.Desai & Diwanji, Adv. For the appellant. Mr.Rajiv Narula with Mr.Kalpesh Mehta i/by M/s.Pravin Mehta & Mithi & Co., Adv. For respondent No.2. CORAM: R.V. MORE, J. 19th DECEMBER, 2008. PC: Heard learned advocates for respective parties. This appeal from order takes exception to an order passed on 24.11.08 by the learned Civil Civil Court Judge below application at Ex.6 in MC Suit No.4857/04. The suit was filed for declaration that the plan dated 13.10.05 is illegal, untenable, void and bad in law. The permanent injunction was also asked against respondent No.2 from proceeding with any construction work on the suit premises in accordance with aforesaid plan. Present notice of motion is filed for temporary injunction to restrain respondent No.1-Corporation from granting permission to respondent No.2 including occupation 1 certificate in full or in part in respect of suit premises and/or for restraining them from acting upon any such plans. 2. It is an admitted fact that the appellant claims tenancy right in the building known as “Kismat” which is situated adjacent to Hindmata Theater. Theater is already demolished and it is being redeveloped by respondent No.2. Case of the appellants seem to be that this development is in breach of IOD and building plans under Development Control Regulations. 3. Mr.Narulla, learned advocate for the respondent No.2, per contra, submitted that the construction of the building is already completed and part of occupation certificate is also granted by respondent NO.1 to respondent No.2 on 11.12.08. He further submitted that so far as appellant' s occupation in Kismat building is concerned the same is not affected. He submitted that the alleged shed or service counter is also not affected by the construction of new building. 4. Having considered the rival submissions of the learned counsel for respective parties and having perused the impugned order and occupation certificate tendered by respondent No.2 I am of the considered view that there is no merit in this appeal. The appellant filed the suit in the year 2004. The present application is filed after lapse of almost four years. In the meanwhile construction of the building after demolition of Hindmata Theater is completed and part of the occupation certificate is given to respondent No.2 on 2 11.12.2008. Therefore the appellant' s prayer restraining respondent No.1-Corporation from granting occupation certificate has become infructuous. The balance of convenience, in view of completion of construction undoubtedly, lies in favour of the respondent No.2. Admittedly occupation of the appellant in Kismat building is not affected. The appellant is in possession of the alleged shed or service counter. It is also important to note that part of occupation certificate issued by respondent No.1 is granted to respondent No.2 subject to outcome of the appellant' s aforesaid Suit pending in the City Civil Court. The appellant has failed to prove even prima facie case. Learned Judge of City Civil Court also recorded similar findings. Hence I do not find any reason to interfere in the impugned order. In the result Appeal from order being devoid of any merit stands dismissed. In view of disposal of Appeal civil application No.1620/08 does not survive and the same also stands disposed of. 19.12.08 (R.V. MORE, J.) 3