1 AO-444-10.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION Mhi APPEAL FROM ORDER NO. 444 OF 2010 WITH CIVIL APPLICATION NOS. 577 OF 2010 IN NOTICE OF MOTION NO. 1045 OF 2010 in L.C. suit no. 739 of 2010 Municipal Corporation of Greater Mumbai &Anr. ... Appellants (Org. defendants) vs. M/s. Nisar Corporation ... Plaintiff (Org. respondent) Mr. N.V.Walawalkar, Special Counsel a/w. Mrs. K.K.Soraan,Advocate, for the appellants. Mr.V.V.Mishra,Advocate for the respondent. CORAM: J.H.BHATIA,J. DATE : 20th July, 2011. P.C. 1. Heard the learned Counsel for the parties. 2. The appeal is preferred by the original defendants/Municipal Corporation against the order passed by the City Civil Court allowing the Notice of Motion and directing the Municipal Corporation to remove seal from the 2 AO-444-10.sxw disputed property. According to the plaintiffs/respondents, the suit property was allotted to them as alternative accommodation in the market area and without any violation of conditions of allotment and without following the procedure laid down under Section 105 of the Municipal Corporation Act, the property was sealed. The trial Court directed the Municipal Corporation to remove the said seal by allowing the said Notice of Motion. 3. The learned Senior Counsel for the Municipal Corporation/appellants has invited my attention to a large number of documents, including a letter dated 12.11.2009 from the plaintiff/respondent to show that the plaintiff had admitted violation of several conditions by making additions and alterations in the property without prior permission. Notices were given to them, meetings were called and after giving all the particulars, final order dated 25.3.2010 was passed for revocation of licence and also taking possession of the premises. The learned Senior Counsel contended that all this material was given to the advocate for the Municipal Corporation before the trial Court with all necessary instructions to contest the Notice of Motion. According to him, the said Advocate did not present the case of the Corporation properly and did not place the material before the trial Court and made certain admissions and gave certain concessions in favour of the plaintiffs and relying on that, the trial Court allowed the Notice of Motion and 3 AO-444-10.sxw passed the impugned order. He also states that the Municipal Corporation has initiated action against that advocate. From this, it appears that while passing the impugned order, all this material was not before the trial Court. If the Advocate for the Municipal Corporation did not faithfully and properly represent the case and allowed the Court to pass order in favour of the plaintiffs,it is not possible to find any fault with the impugned order passed by the trial Court. Anyhow, it appears that the case of the Municipal Corporation was not properly represented and in the larger public interest as well as in the interest of justice, it is necessary that the above material should be properly placed before the trial Court. The impugned order is in operation for last about 15 months. The learned Senior Counsel also states that as per the order of the trial Court, seal was removed and the plaintiff is put back in possession and is carrying on business. The learned Counsel for the plaintiff also accepts this position. 4. In view of these circumstances, the Appeal and the Application may be disposed of with the following directions :- The Defendants/appellants shall file the written statement in Suit No. 739 of 2010 within four weeks, taking all defences which are available ignoring the admissions made and concessions given by the Advocate before the trial Court 4 AO-444-10.sxw at the stage of deciding the Notice of Motion. The Municipal Corporation will also be allowed to ignore the reply filed in the Notice of Motion. The trial Court shall expedite the hearing and dispose of the suit within four months on its own merits, without being influenced by the earlier reply, representation, concession made on behalf of the Municipal Corporation and the observations made in the impugned order. 5. The learned Counsel for the plaintiff/respondent makes a statement that the plaintiff will withdraw the Contempt Petition before the trial Court under Order XXXIX Rule 2A of C.P.C. 6. It is made clear that this Court has not expressed any opinion on the merits of the case. The Appeal and the Application stand disposed of accordingly. (J.H.BHATIA,J.)