IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO. 483 OF 2009 WITH CIVIL APPLICATION NO. 1553 OF 2009 AND FIRST APPEAL NO. 484 OF 2009 WITH CIVIL APPLICATION NO. 1554 OF 2009 AND FIRST APPEAL NO. 485 OF 2009. WITH CIVIL APPLICATION NO. 1555 OF 2009. Ramesh Naresh Malap Dharmshi Jaku Vaid S.B.Bhati ..... ..... ...Appellants. V/s Mun. Corpn. Of Gr. Mumbai. ..... ..... ...Respondent. Mr.C.K.Tripathi, Adv. for the appellants. Mr.J.J.Xavier, Adv. for the respondent. CORAM: A.P.DESHPANDE, J. 1st April, 2009. PC: By consent of learned counsel for parties appeals are taken up for final disposal. The respondent-corporation issued notice under section 314 to the present appellant calling upon him to remove the structure which was purportedly standing on a road. The order passed by the Assistant Commissioner holds that in the year 1993 the revised development plan widened the width of the road from 60 feet 1 to 100 feet and thus the then existing structure would come on the road. Though it is so observed in the order passed by the Assistant Commissioner passed pursuant to notice under section 314 of Municipal Corporation Act, Corporation chose not to file written statement and as also not to examine witness in support of its contention that the structure existed on a road and strong water drain which is sine qua non for taking action under section 314 of the act. 2. The grievance of learned counsel for the appellant is that the development plan which is filed on record by the appellant reveals the width of the road to be 60 feet and thus the structure falls beyond width of the road. It is submitted that this aspect of the matter though pressed in service and substantiated by evidence on record has not been considered by the trial court which chose to dismiss the suit filed by the appellant. Thus learned counsel for the appellant submits that the matter needs to be remanded back to the trial court for fresh hearing and decision. Learned counsel for the corporation also joins in the request made by learned counsel for the appellant and submits that after setting aside the judgment and decree passed by the trial court matter be remanded back for de novo trial and decision of the suit by permitting the respondent-corporation to file written statement within the stipulated period and also by permitting it to lead evidence in support of its contention. The submission is that this course would sub serve and advance the cause of justice. Both the learned counsel are in agreement that the impugned judgment and 2 decree be quashed and set aside and the matter be remanded back to the trial court permitting the respondent-corporation to file written statement and permitting both the parties to lead evidence to substantiate their respective contentions and thereafter for decision afresh in accordance with law. Perused the judgment impugned in the appeal. Having regard to the concession made available by learned counsel for respective parties and having regard to the judgment impugned in the appeal I am also of the considered view that the impugned judgment and decree deserves to be set aside and parties need to be afforded an opportunity to contest the issues. In the result I pass the following order: 3. The impugned judgment and decree passed by the trial court is quashed and set aside. Matter is remanded to the trial court for de novo inquiry and decision in accordance with law. The trial court shall permit the respondent-corporation to file written statement. Written statement to be filed within eight weeks from today. The trial court shall permit both the parties to lead evidence and thereafter decide the suit in accordance with law on its own merits. Appeal is allowed with no order as to costs. Parties to appear before the trial Court on 16.4.2009. Status quo as of today with regard to the suit property be maintained till decision of the suit. In view of disposal of appeal civil application does not survive and the same also stands disposed of. 1.4.2009. 3