1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY IN THE HIGH COURT OF JUDICATURE OF BOMBAY IN THE HIGH COURT OF JUDICATURE OF BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO.1129 OF 2005 WITH CIVIL APPLICATION NO.1402 OF 2005 Shri Payanat Kutty Ali. ..Appellant. V/s. The State of Maharashtra & Ors. ..Respondents. Mr.A.Y.Sakhare, Sr. Advocate with Ram Singh i/b C.B.Yadav for appellant. Mr.V.B.Sakhare, AGP for Respondent No.1,4 and 5. Smt. Ratna Bhargawan for respondent No.2. Mrs. Geeta Joglekar for BMC Respondent No.3. CORAM: A.M.KHANWILKAR,J CORAM: A.M.KHANWILKAR,J CORAM: A.M.KHANWILKAR,J DATE : JANUARY 25, 2006. DATE : JANUARY 25, 2006. DATE : JANUARY 25, 2006. P.C. : P.C. : P.C. : 1. Heard Counsel for the parties. 2. The limited grievance on the basis of which this appeal should succeed is that the appellant had moved Notice of Motion for ad-interim order, whereas the learned trial Judge proceeded to dismiss the notice of motion, making reference only to the documents produced on behalf of the appellant in support of his case. 3. Indeed, the trial court would have been 2 within its jurisdiction to refuse ad-interim relief at that stage for the reasons recorded in the order. However, it is incomprehensible as to how the trial court proceeded to dismiss the unregistered Notice of motion which was moved for the limited purpose of grant of ad-interim relief. As mentioned earlier, the reasons recorded in the impugned order can be said to be tangible reasons for refusing ad-interim relief; but by no stretch of imagination unregistered notice of motion could have been dismissed by the trial court without requiring the opposite party to file pleadings so as to spell out the stand of the defendants. If the defendants were not to contest the case made out by the plaintiff on affidavit, the appellant plaintiff would be entitled to the relief pressed in the Notice of Motion. Suffice it to observe that the undue haste in which the trial court has proceeded to dismiss the unregistered notice of motion at ad-interim stage cannot be countenanced. 4. The impugned judgment will have to be understood as one of refusing to grant ad-interim relief and nothing more. As mentioned earlier, reasons recorded by the trial court in the impugned Judgment, appear to be relevant for refusing 3 ad-interim relief. The Notice of Motion will have to proceed in accordance with the law to be decided on merits on the basis of pleadings and documents which will be produced by the parties. For that purpose the Notice of Motion, which has been dismissed by the trial court by the impugned Judgment, is restored to the file to its original number to proceed on merits in accordance with the law. 5. It is made clear that the trial court will have to proceed on merits from the stage after ad-interim relief. All questions are left open. 6. Needless to observe that the trial court will decide the Notice of Motion uninfluenced by the observations made in the impugned Judgment as well as this order. 7. At this stage, counsel for the respondents points out that suit structure has already been allotted to third party who incidentally is a disabled person. If it is so, the trial court will consider that aspect as and when occasion arise.