Case Note & Summary
The appellant, Musakhan Madankhan, filed a suit challenging a notice under Section 351 of the Bombay Municipal Corporation Act, 1888, issued on 16th October 2004, and an order dated 11th January 2005 passed by the Deputy Municipal Commissioner. The appellant sought ad-interim relief in the suit. The Trial Court rejected the prayer for ad-interim relief solely on the ground that photographs of the suit structure were not produced by the appellant. The appellant then filed an appeal from order before the Bombay High Court. The High Court, after hearing the learned counsel for both parties, found that the Trial Court had not considered the prayer for ad-interim relief on merits. The High Court noted that the Trial Court had only rejected the prayer on the technical ground of non-production of photographs. The High Court held that the Trial Court ought to have considered the prayer on merits. Accordingly, the High Court allowed the appeal, set aside the impugned order, and directed the Trial Court to decide the Notice of Motion afresh on merits without insisting on the production of photographs. The High Court also directed the Trial Court to decide the Notice of Motion as expeditiously as possible, preferably within two weeks from the date of the order. The appeal was disposed of accordingly.
Headnote
A) Civil Procedure - Ad-Interim Relief - Rejection on Technical Ground - The Trial Court rejected the appellant's prayer for ad-interim relief solely because photographs of the suit structure were not produced, without considering the merits of the case. The High Court held that the Trial Court ought to have considered the prayer on merits and directed the Trial Court to decide the Notice of Motion afresh on merits without insisting on photographs. (Paras 3-4)
Issue of Consideration
Whether the Trial Court was justified in rejecting the prayer for ad-interim relief solely on the ground that photographs of the suit structure were not produced, without considering the merits of the case.
Final Decision
The appeal is allowed. The impugned order dated 24th January 2005 is set aside. The Trial Court is directed to decide the Notice of Motion afresh on merits without insisting on the production of photographs. The Trial Court is directed to decide the Notice of Motion as expeditiously as possible, preferably within two weeks from the date of the order.
Law Points
- Ad-interim relief
- rejection on technical ground
- photographs not mandatory
- merits consideration
- Bombay Municipal Corporation Act
- 1888
- Section 351
Case Details
2005 LawText (BOM) (02) 146
Appeal from Order No. 151 of 2005 in Notice of Motion No. of 2005 in Long Cause Suit No. 343 of 2005
Shri P.M. Pradhan with Shri A.S. Karwande for the Appellant, Shri N.V. Walawalkar with Ms. Jogalekar for the Respondent
The Municipal Corporation of Greater Mumbai
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Nature of Litigation
Civil appeal from order rejecting ad-interim relief in a suit challenging a notice under Section 351 of the Bombay Municipal Corporation Act, 1888 and an order of the Deputy Municipal Commissioner.
Remedy Sought
The appellant sought ad-interim relief in the suit to restrain the respondent from demolishing the suit structure.
Filing Reason
The appellant challenged the notice under Section 351 of the Bombay Municipal Corporation Act, 1888 dated 16th October 2004 and the order dated 11th January 2005 passed by the Deputy Municipal Commissioner.
Previous Decisions
The Trial Court rejected the prayer for ad-interim relief on the ground that photographs of the suit structure were not produced.
Issues
Whether the Trial Court was justified in rejecting the prayer for ad-interim relief solely on the ground that photographs of the suit structure were not produced, without considering the merits of the case.
Submissions/Arguments
The appellant argued that the Trial Court ought to have considered the prayer for ad-interim relief on merits and not rejected it on the technical ground of non-production of photographs.
The respondent supported the impugned order.
Ratio Decidendi
The Trial Court ought to have considered the prayer for ad-interim relief on merits and not rejected it solely on the ground of non-production of photographs. The rejection on a technical ground without considering merits is not sustainable.
Judgment Excerpts
I find that the prayer for ad-interim relief is not considered on merits by the learned Trial Judge only on the ground that photographs of the suit structure are not produced by the Appellant.
The learned Trial Judge ought to have considered the prayer on merits.
Procedural History
The appellant filed a suit (Long Cause Suit No. 343 of 2005) challenging a notice under Section 351 of the Bombay Municipal Corporation Act, 1888 and an order of the Deputy Municipal Commissioner. The appellant sought ad-interim relief. The Trial Court rejected the prayer for ad-interim relief on 24th January 2005. The appellant filed an appeal from order (Appeal from Order No. 151 of 2005) before the Bombay High Court, which was heard and disposed of on 8th February 2005.
Acts & Sections
- Bombay Municipal Corporation Act, 1888: 351
