Final Order 1

Order Details: Notice of Motion
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IN THE BOMBAY CITY CIVIL COURT AT GREATER BOMBAY
Notice of Motion 261 of 2019
In
S.C.Suit No.1289 of 2012
MHCC010006812019
Mr. Mukesh Hiralal Jain ...Plaintiff
V/s
The Municipal Corporation of
Gr Mumbai & Anr. ...Defendants
Advocate Jagdish Jayale for plaintiff
Advocate G.O.Giri for defendant/MMC
CORAM : HIS HONOUR JUDGE
SHRI. G.B.GURAO
DATE : 21th January, 2019
(Court Room No.06)
O R D E R
1 Plaintiff has taken out this notice of motion to condone the
delay for filing the notice of motion for restoration of suit and also to
set aside the order of dismissal of suit dated 8/12/2017.
2 Facts in brief are as under:
Plaintiff is in use, occupation and possession of room no. 3
situated at Daulatram Patra Chawl,situated and lying at Final Plot No.
35354, T.P.S.III, Mogal Lane, Mahim, Mumbai 400 016. Defendant
no.1 is the Municipal Corporation for Gr. Mumbai and defendant no.2
is the Assistant Municipal Commissioner. Defendant no.2 has issued
notice to the plaintiff U/s 314 of MMC Act. Plaintiff has challenged the
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said notice in this suit. This Court had granted ad interim relief in
favour of plaintiff. On 24/11/2014 the motion is finally disposed of
and this Court dismissed the notice of motion. Thereafter, plaintiff had
filed appeal from order no. 40 of 2015 before Hon'ble High Court. The
Hon'ble High Court had continued the earlier order of status quo.
3 The defendants had filed their written statement. Suit was
for framing of issues. Thereafter, the matter was adjourned from time
to time. On 8/12/2017, plaintiff and his advocate were absent and
therefore suit was dismissed.
4 According to plaintiff, on 11/12/2018, the advocate for
defendants had submitted before the Hon'ble High Court that suit is
dismissed and accordingly appeal from order is disposed of. Plaintiff
further stated that he was not happy with the performance of the
present advocate and therefore, he was trying to avail the services of
other advocate. Lastly, plaintiff requested the present advocate to
continue the proceeding. Plaintiff has good cause. The suit was for
framing of issues and however it was dismissed. Therefore, plaintiff
prayed to allow the notice of motion.
5 Notice is served to defendants. Defendants filed affidavit of
Mayur Karanjkhele, Jr Engineer, , Maintenance, G North Ward.
According to defendant the suit was for framing of issues, however,
plaintiff and his advocate were absent and therefore the suit is
dismissed. Plaintiff has not shown good cause to restore the suit.
Hence, prayed to dismiss the notice of motion.
5 I have heard Mr. Jagdish Jayale advocate for plaintiff and
Mr. G.O.Giri advocate for defendants.
6 Mr Jagdish Jayale advocate for plaintiff has submitted that
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plaintiff is in occupation of the premises. Plaintiff has not come in the
way of development of the road, however, defendant did not consider
the claim of the plaintiff for alternative accommodation. In fact the
suit was for framing of issues and on 8/12/2017, he and plaintiff were
absent and thus the suit is dismissed. There was status quo order and
the same is also vacated. Now the officers of the defendant are visiting
the premises and threatening the plaintiff to demolish the same. He
further submitted that plaintiff came to know about dismissal of the
suit on 11/12/2018 when the appeal from order is dismissed in Hon'ble
High Court. Therefore, he prayed to restore the suit.
7 Shri G.O.Giri advocate for defendant has submitted that
plaintiff was no diligent. This court has given sufficient opportunity to
the plaintiff to proceed with the suit. Plaintiff and his advocate were
absent and the suit is dismissed. Plaintiff has not shown sufficient
grounds.Hence he prayed to dismiss the notice of motion.
8 By this suit plaintiff had challenged the notice issued by
defendant no.2 U/s 314 of the MMC Act. From the record it is seen that
ad interim relief was granted in favour of plaintiff. Thereafter, upon
hearing of both sides on 24/11/2014 the notice of motion of plaintiff is
dismissed. As plaintiff wanted to file appeal before Hon'ble High Court
this Court had directed both the parties to maintain status quo. The
Hon'ble High Court had also directed to maintain the status quo in
appeal from order no. 40 of 2015.
9 Defendants had filed the written statement. Thereafter,
suit was for framing of the issues. Plaintiff and his advocate were
absent from 18/07/2018. As plaintiff was not present for the
examination under order 10, my Ld predecessor dismissed the suit on
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8/12/2017.
10 As suit is dismissed hence, appeal from order is disposed
of. Plaintiff has come with a specific case that suit was for framing of
issues. However, his advocate did not inform him about the dates and
suit is dismissed. When he came to know that appeal from order is
dismissed at that time he got knowledge about the dismissal of the suit.
Further he was under impression that as the appeal is pending hence
there is necessity for him to appear in the suit. Further he was no
happy with his advocate. Thereafter, he collected the documents and
filed this notice of motion.
11 As discussed in supra plaintiff has claimed that he is in
possession of the premises since long. He is not in the way of
development of the road. Advocate for plaintiff submitted that
defendants have not granted alternative accommodation to the plaintiff
therefore, considering the submission of the Ld counsel for plaintiff and
also the nature of the suit, the ground which prevented the plaintiff
from appearing in the suit, I find that notice of motion deserves to be
allowed but on some cost. Therefore the following order:
ORDER
1 Notice of Motion No. 261/2019 is hereby allowed as
under:
(i) The delay in taking out NM for restoration of suit is
hereby condoned.
(ii) The order dated 08/12/2017 for dismissal of the suit is
hereby set aside and suit is restored to its original stage.
2Plaintiff do pay cost of Rs. 2000/ to the defendant
Municipal corporation, Gr Mumbai.
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3 Notice of motion is disposed of accordingly.
(G.B.Gurao)
Judge,
City Civil Court, Gr. Bombay
Dictated on : 21/01/2019
Typed on : 22/01/2019
Signed by HHJ. : 23/01/2019
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“ CERTIFIED TO BE TRUE AND CORRECT COPY OF THE
ORIGINAL SIGNED JUDGMENT/ORDER.”
24/1/2019 S.D. Raje
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
(H.G.)
Name of the Judge (with Court
Room No.)
Shri. G.B.Gurao
(CR.No.06)
Date of Pronouncement of
JUDGEMENT/ORDER
21/01/2019
JUDGEMENT/ORDER signed by
P.O. on
23/01/2019
JUDGEMENT/ORDER uploaded
on
24/1/2019
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