Final Order 2

Order Details: Notice of Motion
Pdf Text: CNR NO : MHCC010013862020. 1 Notice of Motion No. 520/2020.
in L.C. Suit No. 4529/2012.
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
NOTICE OF MOTION NO. 520 OF 2020.
IN
L.C. SUIT NO. 4529 OF 2012.
Khatoonbi Iqbal Ahmed Qureshi and Others. ..... …. PLAINTIFFS.
V/s.
MCGM and Others. ……........................……….. …. DEFENDANTS.
CORAM : SHRI. A.G. SANTANI.
(Court Room No.11).
DATED : 12th June, 2024.
APPEARANCES :
Mr. S.P. Shrivastava, Ld. Advocate for the Plaintiffs.
Mr. G.O. Giri, Ld. Advocate for Defendant No. 1/MCGM.
Mr. G.B. Naik, Ld. Advocate for Defendant No. 2 (c).
01. Defendant No.2 (c) has taken out this Notice of Motion (for
short ‘the NM’), for condonation of delay of about 609 days in filing of
this NM, to set aside the roznama Order of dtd. 20.01.2018, proceeding
the suit without his written statement, and also for permission to file his
defence. Perused the NM, his affidavit and the plaintiff’s reply. Heard.
02. Considering the record, the point for determination, along -
with my finding and the reasons therefor, are as under :
Sr. No. POINTS FINDINGS
(1). Whether delay of 609 days in filing this
NM needs to be condoned?...................... … Yes.
(2). Whether the Order passed on 20.01.2018
is to be set aside?........……...................... … Yes.
(3). What Order? .…..............…..................... ... As per final Order.
-: REASONS FOR THE FINDINGS :-
AS TO POINT NOS. 1 TO 3 :
03. By this NM, defendant No. 2 (c) came with a specific case
that he is residing with his family at the given address and there was no
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CNR NO : MHCC010013862020. 2 Notice of Motion No. 520/2020.
in L.C. Suit No. 4529/2012.
reason to lock his house. He was never served with the suit summons,
through the belief, and amended copy of the plaint as well. On a search,
in December, 2019, he came to know about pendency of the matter and
later on, there was Christmas Vacation. Further, the documents were in
custody of his father, who left for heavenly abode. That apart, he could
not timely contact his advocate for this matter. Being so, there had been
delay of 609 days in filing of his written statement. It is not deliberate.
The plaintiff falsely filed the affidavit of service at Exhibit 8. There was a
dispute between defendant Nos. 2 (a) and 2 (c). Moreover, defendant
No. 2 (b) also filed the suit for partition. There was a collusion between
the plaintiff and defendant No. 2 (b) and therefore, to help the plaintiff,
he accepted the service for defendant No.2 (c). However, he was never
given such authority by defendant No.2 (c). Even, the said belief never
visited to his house. In the circumstances, delay in filing of his written
statement needs to be condoned by setting aside the roznama Order of
dtd. 20.01.2018. In support of his case, he filed the charge-sheet papers
of C.C. No.203/P/2003. The plaintiff resisted this NM, as defendant No.
2 (c) did not come with clean hands and the NM is time barred. He was
aware about this suit. Moreover, the plaintiff already filed his evidence
on affidavit. Hence, the NM is liable to be dismissed.
04. Considering the rival submissions, at the outset, it is worth
notable that by this suit, the plaintiff prayed for a mandatory injunction,
directing defendant No.1/MCGM to initiate 'suitable action' against the
unlawful construction of defendant No.2 by enforcing the notice, issued
U/s. 354-A of the MMC Act. The record shows that during pendency of
this suit, as defendant No.2 died, his L.Rs. were substituted on record. It
further appears that by filing his affidavit of service (Exhibit 8), the then
Belief, reported service with suit summons against defendant No. 2 (a)
to 2(c) on 19.01.2018. Hence, as per the said Order of dtd. 20.01.2018,
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CNR NO : MHCC010013862020. 3 Notice of Motion No. 520/2020.
in L.C. Suit No. 4529/2012.
the matter proceeded ex-parte against them. Here, it is to be noted that
'the address' mentioned in cause title of the plaint is 'identical' with the
address of defendant No. 2 (c) in this NM. On this backdrop, barring his
assertions, there is no reason to discard this affidavit (Exhibit 8) of the
concerned Baileef and to infer non-service of the suit summons. Coming
to his other contentions that he was not aware about this matter and he
could not contact his advocate timely, it is pertinent to note that the suit
is more than 10 years old. On 12.06.2019 itself, the issues were framed
at Exhibit 11 and the plaintiff also led his evidence on affidavit. As such,
the suit is part heard. Contrarily, there are apparent latches on behalf of
defendant No. 2 (c) to contest the suit. Still, the fact remained that after
passing of the said Order, there could be no progress in the matter. More
so, the suit reliefs are mainly claimed as against defendant No. 2 and on
his demise, against his L.Rs.. Consequently, it would be in the interest of
justice to afford one more opportunity to defendant No. 2 (c) to contest
the suit. However, as the matter is old and setting aside of the Order of
dtd. 20.01.2018 would further protract the trial. Therefore, while doing
so, it would be just to impose some costs upon him. Hence, I answered
point Nos. 1 and 2 in the affirmative and in answer to point No.3, I pass
the following Order:
-: O R D E R :-
(i). Notice of Motion No. 520/2020 is made absolute in terms
of prayer Clause (a), (b) and (c) only, subject to payment
of costs of Rs. 7,500/-(Rs. Seven Thousand Five Hundred)
to the plaintiffs, positively till the next date.
(ii) On payment of the costs, defendant No. 2 (c) is permitted
to file his written statement, without further delay.
(iii). Notice of Motion No. 520/2020 is, accordingly,
disposed of.
{A.G. Santani}
Mumbai. Judge,
Dated : 12.06.2024. City Civil Court, Mumbai.
Dictated on : 12.06.2024.
Transcribed on : 13.06.2024.
Checked and Signed on: 14.06.2024.
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CNR NO : MHCC010013862020. 4 Notice of Motion No. 520/2020.
in L.C. Suit No. 4529/2012.
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME
14.06.2024 at 2.58 p.m.
Name of the Stenographer
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 12.06.2024.
Judgment/Order signed by P.O. on 13.06.2024.
Judgment/Order uploaded on 14.06.2024.
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