Final Order 1

Order Details: Notice of Motion
Pdf Text: NM No.358/2018 1 L.C. Suit No.2694/10
CNR No. MHCC010014242018
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO. 358 of 2018
IN
L.C. SUIT NO. 2694 OF 2010
Ajay Kumar Bhulan Maurya )
Aged 34 years, Occupation : Business )
residing at Room No.06, Ground Floor, )
Bombay Municipal Chawl, 45HI, )
Shri. Ganesh Nagar, Lalbaug, B.a. Road )
Bombay 400 012. )…Plaintiff
Vs.
1. Mumbai Municipal Corporation )
A statutory body constituted under the )
Mumbai Municipal Corporation Act 1888, )
having its' Head office at Mumbai )
Mahanagar, Palika Building, Mahanagar, )
Palika Marg, Fort, Mumbai 400 001. )
2. Administrative Officer, )
Estate Department, F/South Ward )
Mumbai Municipal Corporation, Parel )
Mumbai 400 001. )
3. Shri Ramnuj Raghuvar Maurya )
Aged about 60 years, )
Occupation : Not known, )
residing at flat No.B/301, Aleel Park, Near )
Shanti Park, Nile More, Nallasopara (West) )
District : Thane )
recently came back to reside at Ground )
Floor, Room No.6, Bombay Municipal )
Chawl, 45HI, Shri Ganesh Nagar, Lalbaug, )
B.A. Road, Bombay 400 012. )Deleted since Deceased
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3a) Anant Kumar Maurya S/o Late )
Ramanuj Raghuvar Maurya )
Being heirs and legal representatives )
of late Shri. Ramanuj Raghuvar Maurya )
Aged about 34 years, Occupatin : Service, )
residing at flat No.B/301, Aleel Park, )
Near Shanti Park, Nile More, )
Nallasopara (West), District : Thane. )
3b) Smt. Urmila W/o Rabinder Maurya )
D/o late Shri Ramanuj Raghuvar Maurya )
Being Heirs and Legal Representative of )
late Shri Ramanuj Raghuvar Maurya )
Aged about, not known, residing at village )
Bela, Post : Fareda, District : Maharajganj,)
Uttar Pradesh. )
3c) Smt. Kusum W/o Omprakash )
Kushwaha D/o late Shri Ramanuj )
Raghuvar Maurya Being Heirs and Legal )
Representative of late Shri Ramanuj )
Raghuvar Maurya Aged about, not known, )
residing at Nichlal Bazar, )
District : Maharajganj, Uttar Pradesh. )...Defendants
APPEARANCE:
Ld. Adv. Mr. P.K. Mishra for the plaintiff.
Ld. Adv. Mrs. Meena Dhuri for the defendant/MCGM.
CORAM : HER HONOUR ADHOC JUDGE
SMT. C.P. JAIN (C.R. NO.06)
DATED : 10th JANUARY, 2020.
O R D E R
This Notice of Motion is moved by defendants praying for
setting aside exparte order & judgment dated 10.07.2017 allowing the
applicant's chamber summons No.902 of 2015, to be joined as party
defendants in suit and restore the chamber summons back to the initial
stage.
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2. In the affidavit filed in support of notice of motion, it is
averred by plaintiff that during the pendency of the suit, late Smt.
Chandrakala Radheshyam Gupta, took out an application by way of
chamber summons bearing No.2640 of 2013 interalia praying that she
be joined as party defendant in the suit on ground that she had
allegedly acquired interest in the suit premises. On 04.04.2015, she
expired during pendency of the said chamber summons. In consequence
thereof, the said application became infructuous and hence was
withdrawn by the learned advocate appearing for her. Thereafter, the
present applicant claiming to be the only heirs and successor of
deceased Smt. Chandrakala Radheshyam Gupta, took out the present
chamber summons bearing No.905 of 2015 interalia praying that they
be joined as party defendant in the present suit, allegedly on the ground
that they have become heirs and successors to the interest of the
deceased Smt. Chandrakala Gupta. During pendency of the suit and
chamber summons the defendant No.3 was expired. In the
circumstance, the plaintiff took out chamber summons seeking relief
that the respondents in the chamber summons, currently the defendants
No.3(a) to 3(c), be joined as defendants, being heirs and successors of
the deceased defendant No.3. The chamber summons was allowed by
the court and the respondents therein were added as the defendants
No.3(a) to 3(c). After the amendment, the plaintiff got the amended
writ of summons to and in the name of the newly added defendants and
attempted to serve upon them. The writ of summons sent to the
defendant No.3(a) was duly served, however there was no return of the
postal packets sent to the defendants No.3(b) and (c). Plaintiff made an
application to this Hon'ble court praying for an order issuing fresh
summons against the defendants No.3(b) and (c). Fresh writ of
summons was issued in the name of the defendants No.3(b) and (c).
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Matter was for report on 26.04.2017. Until 10.07.2017 neither the
packets sent to defendants No.3(b) and 3(c) nor their
acknowledgements were received back by advocate for plaintiff on
10.07.2017, plaintiff was present. He could not hear as to when the
chamber summons of the applicant was called out, heard and decided.
When his advocate came in the evening and enquired as to the status of
matter from the sheristedar of this Hon'ble Court, he was informed that
matter is adjourned for the compliance. He and his advocate remained
under the impression that the Hon'ble Court has adjourned for
compliance, in the sense, as to filing of the affidavit of service of service
of writ of summons upon the defendants No.3(b) and 3(c). On
10.07.2017, neither he nor his advocate was informed about the
applicants chamber summons being heard and decided. The matter was
adjourned to 24.07.2017 and thereafter on 16.08.2017 and on all these
dates, he and his advocate were under impression that the packets sent
to the defendants No.3(b) and (c) has not yet been received back and
hence matter is for compliance. On 09.10.2017 & 15.12.2017, the
matter was adjourned in the same manner and for same purpose. On
15.12.2017 he and his advocate came to this Court and seeing the
board, was very much shocked and surprised to note that matter had
appeared under the caption of "dismissal." On 15.12.2017 on enquiry
from sheristedar and perusing the record and proceeding and roznama
in the matter for the first time he came to know that chamber summons
bearing No.905 of 2015 was heard and decided exparte on 10.07.2017.
Thereafter this Court was on Christmas Vacation on and from
23.12.2017 until 3rd January 2018. On 22.12.2017 until 03.01.2018 his
advocate was out of station. On arrival, for some days he was not well
and also busy in other matters and hence the present application for
setting aside exparte order could not be prepared and taken out. He
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therefore prayed that delay caused in the above matter be condoned.
3. Defendant corporation has filed reply to notice of motion
overleaf. In reply, defendant corporation has submitted to orders of the
court.
4. Heard both the learned advocates. Perused the proceeding.
It is important to note that chamber summons No.902 of 2015 was
moved on 06.07.2015. Since then, it was pending for reply. Reply was
not filed till 27.06.2016 & so on 27.06.2016 order of "proceeding
chamber summons without reply of plaintiff" was passed and matter
was posted for chamber summons hearing without reply. Since
05.08.2016 till 10.07.2017, plaintiff did compliance of steps against
defendants for issuing writ of summons. However, same cannot exempt
plaintiff from hearing on chamber summons. It appears that in span of
05.08.2016 to 10.07.2017, the factum of hearing on chamber summons
was missed out in roznama. But by no stretch, it can be said that
plaintiff was not aware about chamber summons No.902/2015. On the
contrary, plaintiff failed to take pains to file reply till 10.07.2017. The
suit is of plaintiff. Plaintiff should have enquired about this chamber
summons. Therefore, no bonafides can be attributed to plaintiff on this
point.
5. Furthermore, the chamber summons No.902/2015 is
decided on merits. Setting aside this order will be as good as sitting as
appellate court over order in chamber summons No.902 of 2015. The
ground that suit was posted for steps & not on chamber summons
hearing on 10.07.2017 cannot be valid ground to set aside the
judgment in chamber summons which is decided on merits & further by
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this court. If the plaintiff is aggrieved by order in chamber summons
No.902/2015, he has to knock the doors of proper court which does not
include this court. The arguments of Ld. advocate for defendants has
substance. I cannot accede with arguments of Ld. advocate for plaintiff.
The prayer clause (a) & (c) of notice of motion cannot be granted.
Plaintiff has alternatively prayed for permission to carry out amendment
in compliance of order dated 10.07.2017 passed in chamber summons
No.902/2015 which can be accepted. Therefore, prayer in notice of
motion making absolute prayer clause (b) deserves to be allowed. In
result, I proceed to pass following order.
ORDER
1. Alternate Prayer clause (b) of Notice of Motion No.358/2018 is
hereby allowed.
2. Plaintiff shall carry out proposed amendment in compliance of
order dated 10.07.2017 in chamber summons No.902/2015
within 2 weeks of this order.
3. Notice of Motion No. 358/2018 is accordingly disposed of.
(C.P. Jain)
Adhoc Judge, (C.R.No.06)
Date : 10.01.2020 City Civil Court, Gr. Mumbai
Dictated on :10.01.2020.
Transcribed on :10.01.2020.
Signed on :13.01.2020
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE AND TIME : 14.01.2020, 10.59 am.
NAME OF STENOGRAPHER : Mr. Harshal D. Jagtap
Name of the Judge (With Court
Room No.)
HHJ Smt. C.P. Jain
C.R. No.06
Date of Pronouncement of
JUDGMENT/ORDER
10.01.2020
JUDGMENT/ORDER signed by
P.O. on
13.01.2020
JUDGMENT/ORDER uploaded on 14.01.2020
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