Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM 101-19 in Suit No. 1727-11
CNR NO.MHCC01-000260-19
IN THE COURT OF CITY CIVIL FOR GREATER BOMBAY
AT BOMBAY
NOTICE OF MOTION NO. 101 OF 2019
IN
L.C. SUIT NO. 1727 OF 2011
Kishor V. Dudhani ....Plaintif
V/s.
The Municipal Corporation of Greater Mumbai..... Defendant
Coram : Sanjay N. Yadav, Judge
(Court Room no. 05)
Date : 01st February, 2020
Appearance:
Ld. Adv. Ms. Remandes for the plaintif.
Ld. Adv. Mr. Nandanwar for defendant/MCGM.
ORDER
1. Perused the application. The defendant seeks to fle the
written statement in the suit.
2. Heard Learned Advocate for the defendant corporation
and Learned Advocate for the plaintif.
3. The defendant corporation by this notice of motion seeks
to set aside the order of no written statement and seeks
permission to fle the written statement. It is contended by
the corporation that due to heavy work and administrative
exigences, the corporation could not fle the written
-- 1 of 4 --
2 NM 101-19 in Suit No. 1727-11
statement. It is submitted that the order of no written
statement to be set aside and it be permitted to fle written
statement.
4. The learned Advocate for the plaintif on the other hand
contends that there is delay of two years and is not
satisfactorily explain. No just grounds are made.
The Hon'ble High Court in the case of Sopan Maruti
Thopte & Anr. V/s. Pune Municipal Corporation & Anr. in
paragraph no. 28, had observed as follows:-
''28. Considering the aforesaid decisions it should be
borne in mind before issuance of an injunction that it is a
discretionary and an equitable relief. It is not mandatory that
for mere asking such relief should be given. It is not a charity
at the cost of public. However, we make it clear that the
procedure established by law has to be followed by the public
authorities, whether it be the State or a local body, including
the Municipal Corporations. At the same time, the procedural
lapses, unintentional or intentional, which do not seriously
afected the substantive rights of a person, ought not to result
in ad-interim orders which protect illegality having already
been committed by the plaintif and to give licence of
continuing fruits of such illegality for years. Violators of law
should not liberally be allowed to take protection of Court of
law by obtaining ad-interim injunctions which have the efect
of continuing such violation.''
In the light of the observation of the Hon'ble Court, it is
required to seen the same time, the procedural lapses,
unintentional or intentional, which do not seriously afected
the substantive rights of a person, ought not to result in
-- 2 of 4 --
3 NM 101-19 in Suit No. 1727-11
decree with the suit which protect alleged illegality having
already been committed by the plaintif and to give licence of
enjoying fruits of such illegality.
The allegation of unauthorized construction is a social
wrong. A wrong against society. The lapse to fled W.S. may
be intentional or non intentional, its beneft should not be
given to the wrong doer.
In the interest of justice the corporation, therefore, needs
to be permitted to fle Written statement.
In the result following order is passed.
ORDER
1. The order of no written statement against the
defendant/corporation is set aside.
2. The defendant / corporation is permitted to fle the written
statement.
3. The Notice of Motion No. 101/2019 stands disposed of.
(Sanjay N. Yadav)
Judge,
Date : 01.02.2020 City Civil Court, Mumbai.
Dictated on : 01.02.2020
Transcribed on : 03.02.2020
Signed by HHJ on : 05.02.2020
-- 3 of 4 --
4 NM 101-19 in Suit No. 1727-11
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE
ORIGINAL SIGNED JUDGMENT/ORDER.”
UPLOAD DATE AND TIME : 06.02.2020 at 10.25 a.m.
NAME OF STENOGRAPHER : Mrs. K.S.Bhosale
Name of the Judge (With
Court Room no.)
HHJ Shri. Sanjay N. Yadav
C.R. no. 05
Date of Pronouncement of
JUDGMENT/ORDER
01.02.2020
JUDGMENT/ORDER signed
by P.O. on
05.02.2020
JUDGMENT/ORDER
uploaded on
06.02.2020
-- 4 of 4 --