1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO.643 OF 2007 WITH CIVIL APPLICATION NO.1238 OF 2007 Mrs.Banqobai Ibrahim Zariwala, ..Appellant of Bombay, Indian Inhabitant, residing at 48, Masjid Street, Patankar House, Third Floor, Bombay – 400 003 V/s. 1. Municipal Corporation of Greater Bombay, a, body incorporated under the Provisions of B.M.C.Act having offices at Mahapalika, Fort, Bombay – 400 001 2. Bombay Repair & Reconstruction Board, having their offices at Griha Nirman Bhuvan, Bandra(East), Bombay – 400 051 ..Respondents 3A.Ikhlak Akhtar Hussain Taxiwala 3B.Imran Akhtar Hussain Taxiwala both of Bombay, Indian Inhabitants, residing at 46, Masjid Street, Second Floor, Bombay – 400 003 4. Mr.Esmail E. Dhariwala 5. Mr.Abdeali E. Dhariwala 6. Mrs.Mariam S. Sadikot 7. Mr.Mohsin E. Dhariwala 8. Mr.Badruddin E. Dhariwala 9. Mr.Yahya E. Dhariwala 2 All having their addresses at 116/118, P.D'Mello Road, Maniar Building, Carmac Bunder, Mumbai – 400 009 Mr.Navin Parekh with Mr.Hetal Patel, advocate, appellant Mr.J.J.Xavier, advocate, for the respondent No.1 Mr.B.H.Mehta, AGP, for the respondent No.2 Mr.Anil Desai, advocate, for the respondent Nos.3A, 3B and 4 CORAM : A.S.OKA, J. DATE : 22ND FEBRUARY, 2008 ORAL JUDGMENT . By consent of the parties, the appeal was taken up for final disposal on the last date. I have heard the learned counsel appearing for the appellant, the learned counsel appearing for the second respondent and the learned counsel appearing for the respondent Nos.3A and 3B and 4. The affidavit of service of notice served on rest of the respondents is on record. 2. The first appeal is by the original plaintiff. The plaintiff has taken an exception to the Judgment and Order dated 8th August, 2006 passed 3 by the learned Judge of the City Civil Court, Mumbai by which the suit filed by the appellant was dismissed. The submission of the learned counsel appearing for the appellant is that none of the defendants had chosen to contest the suit. He submitted that in view of the averments made in the plaint and documents produced on record, this was a fit case to pass a decree under Rule 10 of Order VIII of the Code of Civil Procedure, 1908. It must be noted here that when the Civil Application for stay was taken up for hearing, one of the submissions made by the learned counsel appearing for the respondent Nos.3A and 3B was that the Writ of Summons was not served to the said respondents and in any event, amended plaint was not served. 3. The learned counsel appearing for the appellant has invited my attention to the relevant entries made in the roznama of the proceedings of the suit. He pointed out that the Chamber Summons for amendment of the plaint was made absolute after notice to all concerned defendants. He pointed out that on 12th August, 2004, an order was passed by 4 the trial Court that the suit will proceed without Written Statement of the defendants. 4. Perusal of the impugned Judgment shows that the learned trial Judge has completely misdirected himself. He has not considered the averments made in the plaint and relevant documents annexed to the plaint. The learned counsel appearing for the respondent Nos.3A and 3B has made a grievance that he had no opportunity to file a Written Statement. Considering these aspects it will be in the interests of both the parties if impugned Judgment and Decree is set aside and the suit is remanded to the trial Court for hearing the same afresh. Hence, I pass the following order. (i) The impugned Judgment and Decree dated 8th August, 2006 is quashed and set aside and L.C.Suit No.2935 of 1997 restored to the file. (ii) The parties are directed to appear before the trial Court on 7th April, 2008. It will be open for the concerned defendants to file Written Statement on 7th April, 2008. It is made clear that no further time will be granted by the trial Court to the concerned defendants to file Written Statement. (iii) The appellant/plaintiff is directed to amend the plaint for bringing the legal representatives of the original defendant No.4 on record of the suit who are already brought on 5 record in this Appeal. The Trial Court will issue notice of further date fixed in the suit to the said legal representatives. (iv) Ad-interim relief which was operating in the suit will continue to operate till final disposal of the suit. (v) The trial Court will make an endeavour to decide the suit as expeditiously as possible and preferably within a period of six months from the date of appearance fixed by this order. (vi) All contentions of the parties in the pending suit are expressly kept open. (vii) The appeal is partly allowed in above terms. (viii) R & P be sent back to the trial Court immediately. (A.S.OKA, J.)