Final Order 2

Order Details: Notice of Motion
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IN THE BOMBAY CITY CIVIL COURT AT GREATER BOMBAY
NOTICE OF MOTION NO. 87 OF 2020
IN
L.C.SUIT NO. 4658 OF 2012
Textile Anilane and Chemical Company Pvt. Ltd. .. Plaintiff
V/s.
Municipal Corporation of
Gr.Mumbai and Anr. ...Defendants
CORAM: HIS HONOUR JUDGE
SHRI. R. B. PARVEKAR
CITY CIVIL COURT
GR. MUMBAI
DATE : 02/12/2023
Adv. Mr. A. R. Pande for the plaintiff.
Adv. Ms. Meena Dhuri for the defendants/BMC.
ORAL ORDER
1. This notice of motion is taken out by the plaintiff for
setting aside order dt. 10/12/2019 of withdrawal of L.C. Suit
no. 4658/2012 alongwith Notice of Motion No. 3143/2012.
2. Read Notice of Motion, reply filed by defendant. Heard
both sides.
3. By this notice of motion plaintiff sought relief of setting
aside order dt 10/12/2019 of withdrawal of L. C. Suit no.
4658/2012 alongwith Notice of motion no. 3143/2012 on the
ground that, due to miscommunication Pinakin Shaha and us,
due to mistake and error suit as well as notice of motion was
withdrawn. On the other hand defendant objected the said
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contention.
4. Before discussing plea raised by plaintiff, it is necessary
to mention here that, plaintiff is a private limited company.
L. C. Suit no. 4658/2012 instituted by plaintiff company
through C.A. Prakash Tukaram Patil for challenging legality of
notice U/s. 351, 488 of MMC Act. Plaintiff also sought
injunction against defendant/BMC. Thereafter, on 10/12/2019
plaintiffs authorized Signatory/Director Pinakin Shaha filed
application before court and prayer for disposal of suit by
seeking liberty to withdraw it vide. Exh. 5. As per order passed
in Exh. 5, the contents in the application were admitted by
plaintiff company, hence, accordingly on 10/12/2019 L. C. Suit
no. 4658/2012 was disposed off. After disposal of the suit, NM
no. 3143/2012 was also disposed of by my Ld. Predecessor on
10/12/2019. These two orders were sought to be set aside by
the plaintiff in the present Notice of motion.
5. On perusal of recitals in Para no. 9 of Notice of motion it
is gathered that, C.A. of Plaintiff company by name Prakash
Patil apprehends that, if notice structure is demolished, he
alongwith his family come on the road. Hence, it is gathered
that C.A. is a employee of plaintiff company and due to
withdrawal of suit, he apprehends that, notice likely to
executed by defendant/BMC against alleged unauthorised
construction. Therefore, as per the recitals in para no. 9, it is
clear that, employee of plaintiff ’s company/C.A. filed present
application for protection of notice structure. It is not the case
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of plaintiff company that by playing a fraud, misrepresentation
L. C. Suit no. 4658/2012 alongwith notice of motion no.
3143/2012 is withdrawn. Under such circumstances no
sufficient grounds are made out by the plaintiff company for
setting aside order of withdrawal passed in L. C. Suit no.
4658/2012. Apart from this permission to withdraw suit under
Order 23 Rule 1(4) of Code of Civil Procedure was granted by
my Ld. Predecessor to the plaintiff vide Exh. 5. Therefore,
notice of motion for setting aside withdrawal order is not
maintainable before this court. Hence, it not just and equitable
in the eye of law to set aside withdrawal of suit order passed
in L. C. Suit no. 4658/2012 and in Notice of motion
3143/2012. Accordingly I proceed to pass following order.
ORDER
1.Notice of motion No. 87/2020 is rejected.
2.Both the parties to take note of this order.
3.Cost in cause.
4.Notice of motion No. 87/2020 is disposed off accordingly.
Date 02/12/2023 (R. B. Parvekar)
Ad-hoc Judge,City Civil Court
Gr. Mumbai
Dictated on :02/12/2023
Typed on :02/12/2023
signed on :02/12/2023.
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