Final Order 1

Order Details: Notice of Motion
Pdf Text: CNR NO. : MHCC01-000838-2020. Notice of Motion No. 381/2020
in L.C. Suit No. 728/2017.
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
NOTICE OF MOTION NO. 381 OF 2020.
IN
L.C. SUIT NO. 728 OF 2017.
Liyakat Hussein Khan and the Others. ….. ….. PLAINTIFFS.
V/s.
Ajaj Ahmad Mohd. Jais Chaudhary +2. .... ….. DEFENDANTS.
CORAM : SHRI. A.G. SANTANI.
(Court Room No.11).
DATED : 13th March, 2023.
APPEARANCES :
Shri. D.N. Mishra, Ld. Advocate for the Plaintiffs.
Shri. Shrinivas Singh, Ld. Advocate for Defendant No. 1.
Shri. Sunil Khandagale, Ld. Advocate for MCGM/Defendant No. 3.
*****
01. Defendant No.1 has taken out the Notice of Motion (for the
brevity ‘the NM’), for the condonation of delay of 180 days in filing his
written statement, by setting aside the Order dtd. 03.09.2019, whereby
the present suit was proceeded ex-parte against him. Perused this NM,
his accompanying affidavit and say of the plaintiffs. Heard both sides.
02. Considering the record, the point for determination, along -
with my finding and the reasons therefor, are as under :
Sr. No. POINTS FINDINGS
(i). Whether the Order dtd. 03.09.2019 is
to be set-aside?. …................................ … Yes.
(ii). What Order ? …..............…...................… As per final Order.
-: REASONS FOR THE FINDINGS :-
AS TO POINT NO. 1 :
03. By filing this NM, defendant No.1 came with a specific case
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CNR NO. : MHCC01-000838-2020. Notice of Motion No. 381/2020
in L.C. Suit No. 728/2017.
that on 02.04.2019, though, he was served upon the writ of summons,
it was somehow misplaced during renovation of his office. Thereafter,
he could not attend the office of his advocate, as he was required to go
to his native place for some urgent work. In June-2019, he returned and
contacted to his advocate on 03.07.2019. Although, he was called by his
advocate to attend the matter, as he had heart surgery, even this time,
he couldn't do so. Finally, he approved his written statement and get it
affirmed on 11.10.2019. However, prior to that on 03.09.2019, the said
Order came to be passed against him. He submitted that due to some of
the unavoidable reasons, he couldn’t file his written statement timely in
this matter. As such, the delay may be condoned else he would suffer an
irreparable loss. The plaintiffs objected this NM on the counts that there
are no sufficient reasons to consider the same.
04. Considering the rival stands, it is worth to be noted that by
filing this suit, the plaintiffs prayed for the relief of perpetual injunction,
restraining defendant No. 1 from constructing/repairing/renovating on
the upper floor of the premises and for mandatory injunction, directing
defendant No. 3 to demolish the said construction of upper floor. In this
manner, substantial relief is claimed only against defendant No. 1 and it
is, therefore, his contest is necessary to adjudicate the issues effectively.
Moreover, even after passing of the Order of dtd. 03.09.2019, there has
been no substantial progress in the matter and still it is pending for NM.
That apart, no vital rights could be accrued in favour of the plaintiffs as
well after passing of this Order, which be otherwise taken away in view
of this Ch/s.. Simultaneously, it is always better to have a full-fledged
trial on merits and therefore, I am of the opinion that defendant No.1
may be given one opportunity to contest the suit by filing his defence.
Still, while considering this NM, it would be appropriate that some costs
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CNR NO. : MHCC01-000838-2020. Notice of Motion No. 381/2020
in L.C. Suit No. 728/2017.
may be imposed upon him to have delayed this trial. Hence, I answered
point No.1 in the affirmative and in the answer to point No. 2, I pass the
following Order :
-: O R D E R :-
(i). Notice of Motion No. 381/2020 is made absolute in terms
of Clause (a) and (b) only, subject to payment of costs
Rs. 2,000/- (Rs. Two Thousand) in favour of the DLSA,
Mumbai, till the next date.
(ii). On the payment of costs, defendant No. 1 is directed to
proceed with the matter without further delay..
(iii). Notice of Motion No. 381/2020, accordingly, stands
disposed of.
{A.G. Santani}
Mumbai. Ad-hoc Judge,
Dated : 13.03.2023. City Civil Court, Mumbai.
Dictated on : 13.03.2023.
Transcribed on : 14.03.2023.
Checked and Signed on : 16.03.2023.
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CNR NO. : MHCC01-000838-2020. Notice of Motion No. 381/2020
in L.C. Suit No. 728/2017.
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME
18.03.2023. at 3.00 p.m.
Name of the Stenogrpher
Mrs. S.R.Mejari
Name of the Judge (with Court Room No.) HHJ Shri A.G.Santani
(Court Room No.11).
Date of Pronouncement of Judgment/Order 13.03.2023.
Judgment/Order signed by P.O. on 16.03.2023.
Judgment/Order uploaded on 18.03.2023.
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