1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO. 1438 OF 2008 FIRST APPEAL NO. 1438 OF 2008 FIRST APPEAL NO. 1438 OF 2008 Smt. Fatemabai alias Fatema Mohsinbhai Rassiwala ... Appellant Vs. (Orig. Plaintiff) The Municipal Corporation of Greater Mumbai ... Respondent Mr. Rakesh M. Pandey, Advocate for the appellant. Mr. J.J.Xavier, Advocate, for Respondent. CORAM: J.H.BHATIA,J. CORAM: J.H.BHATIA,J. CORAM: J.H.BHATIA,J. DATE: 7th August, 2008. DATE: 7th August, 2008. DATE: 7th August, 2008. P.C. P.C. P.C. 1. Heard the learned Counsel for the parties. 2. The appellant is the plaintiff in L.C.Suit No.2307 of 2005 filed before the City Civil Court, Bombay challenging the notice under Section 351 of the Bombay 2 Municipal Corporation Act. It appears that the plaintiff had filed an affidavit in examination in chief, but thereafter her cross-examination could not be recorded inspite of the appointment of Court Commissioner. Several adjournments were taken by her and finally on 1.7.2008, the trial Court refused to grant any further adjournment and dismissed the suit. Against dismissal of the suit, the plaintiff has preferred the present appeal. 3. The learned Counsel for the plaintiff/appellant pointed out that the plaintiff was bed-ridden for long time and on 1.7.2008, she was brought to the Court in an ambulance, but she was unable to walk. Due toi size of stretcher, she could be taken up even by lift. The Advocate for the plaintiff made a request to the Court to make arrangement to bring her to the Court. This request was rejected. In fact, when the Commissioner was already appointed by the Court for recording her evidence, there was no need for her to come to the Court. The request made by the Advocate to the Court to make arrangement to bring her to the Court was totally unjustified and could not be accepted. The trial Court was right in rejecting the application. In fact, the plaintiff should have requested the Commisioner to record her evidence on a particular day or time after 3 giving intimation to the opposite side lawyer. As far as the other witnesses are concerned, they could have been brought to the Court and they could be examined, but nothing was done by the plaintiff. It appears that having obtained certain interim relief, the plaintiff was not interested in proceeding with the matter and therefore on the pretext of her illness, repeated adjournments were being sought. In such circumstances, it is difficult to find fault with the dismissal of the suit. 4. However, admittedly, the dispute is pertaining the garage, which is a part of the old building. The only question is whether the garage is protected under the rules or not. Therefore, in the interest of justice, the Appeal may be disposed of with the following directions :- Subject to the payment of cost of Rs.2,000/- (Rupees two thousand only) by the appellant to the Municipal corporation within 2 weeks from this date, the Appeal is hereby allowed and the impugned order dated 1.7.2008 dismissing the suit No.2307 of 2005 is hereby set aside. The parties shall appear before the trial Court on 21.8.2008 4 and on that day, a specific date within 2 weeks from that date, shall be fixed when the plaintiff shall be available for recording her evidence by the Commissioner and the plaintiff shall complete her remaining evidence also within 3 weeks thereafter. No adjournment shall be granted to the plaintiff by the trial court except under the circumstances which may be beyond the control of the parties. The trial Court shall dispose of the matter preferably within 3 months from this date. If the appellant fails to pay the cost within time, the appeal shall be deemed to have been dismissed. 5. As the Appeal itself is disposed of, C.A.No.3756 of 2008 does not survive and stands disposed of accordingly. (J.H.BHATIA,J.) (J.H.BHATIA,J.) (J.H.BHATIA,J.)