Final Order 1

Order Details: Notice of Motion
Pdf Text: CNR NO. MHCC01-001862-2020. 1 Notice of Motion No.695/2020.
in L.C. Suit No. 1877/2015
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
NOTICE OF MOTION NO. 695 OF 2020.
IN
L.C. SUIT NO. 1877 OF 2015.
Jamiat Ahle-Hadis Educational Trust...….....…. …. PLAINTIFF.
V/s.
MCGM. …......................................................... …. DEFENDANT.
CORAM : SHRI. A.G. SANTANI.
(Court Room No.11).
DATED : 18th July, 2023.
APPEARANCES :
Mr. Siddharth Wakode, Ld. Advocate for the Plaintiff.
Mrs. Smita S. Chavan, Ld. Advocate for the Defendant/MCGM.
01. The plaintiff has taken out this Notice of Motion (for short
the NM), for setting aside of the Order dtd. 18.01.2020, dismissing suit
No.1877/2015, and to restore the same to its original stage. Perused the
NM, supporting affidavit of Mohd. Yaar Umar, for the plaintiff, and reply
of the defendant. Heard both the 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. 18.01.2020 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, the plaintiff contended that it is the trust
duly registered on 13.02.2004. It is in exclusive possession of Shop Nos.
3, 4, 5 and 6, situated at Survey No. 96, CTS No. 23 at Hariyali Village,
Vikhroli (W), Mumbai. This suit premises is situated at slum area. Still,
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CNR NO. MHCC01-001862-2020. 2 Notice of Motion No.695/2020.
in L.C. Suit No. 1877/2015
the defendant issued the notice dtd.10.08.2015, U/s. 354-A of the MMC
Act, falsely alleging unauthorized constructions, admeasuring 55’ X 19’
on ground floor. The plaintiff replied this notice in detail and filed this
suit assailing the said Notice. Further, this Court granted the ad-interim
relief in his favour. The plaintiff was attending the suit regularly. Even,
his advocate took out a chamber summons (Ch/s.) for amendment and
the same was allowed. As such, this matter was pending for compliance.
One of the trustees was looking after to this matter. However, as there
was some dispute in respect of the Trusteeship, the trustees went to the
Central Office at Uttar Pradesh State and due to some personal work,
they were unable to contact their advocate. On 12.12.2019, the plaintiff
received a notice from his advocate and later on, came to know about
the dismissal Order of dtd.18.01.2020. He submitted that the delay in
preferring this NM is not deliberate and he has a good case on merit. As
such, the said Order dtd. 18.01.2020 needs to be recalled. Assailing this
NM, the defendant contended that as the plaintiff was not interested to
go on trial, it resulted in dismissal.
04. Having considered the rival stands, at the outset, it is worth
notable that by filing this suit, initially, the plaintiff assailed the notice
dtd.10.08.2015, issued U/s. 354-A of the MMC Act, and prayed for the
other ancillary reliefs. The record reveals that during pendency of this
suit, he took out this Ch/s. No. 1672/2015 for amendment and it was so
allowed on 20.03.2019. As such, the suit was adjourned for compliance.
However, thenceforth, he remained absent for such compliance even on
affording the ample opportunities and his advocate made the statement
on 11.11.2019 and 04.12.2019 that this plaintiff was not in contact. In
the result, on 04.12.2019, the interim relief, standing in his favor, stood
vacated and finally, on 18.01.2020, as nobody attended this matter for
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CNR NO. MHCC01-001862-2020. 3 Notice of Motion No.695/2020.
in L.C. Suit No. 1877/2015
the plaintiff, the same came to be dismissed. Thus, it is crystal clear that
there are latches on the plaintiff’s part to timely proceed with this suit,
which is more than 07 years old. However, it is equally true that interim
Order was granted in his favour and only on 04.12.2019, it came to be
vacated. Certainly, no substantial rights could be accrued in favour of
the defendant after dismissal of the suit. That apart, it would always be
better to have the trial on merits. On this backdrop, I am of the opinion
that one more chance should be given to him to show his bonafide to
proceed with this suit. However, while considering this NM, it would be
just to impose adequate costs upon him to have further delayed this old
suit. 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. 695/2020 is made absolute in terms
of prayer clause (a) and (b) only, subject to payment of
costs of Rs. 5,000/- (Rs. Five thousand) in favour of
the DLSA, Mumbai, within three weeks from passing
of this Order.
(ii). On payment of the costs, the proceedings of Suit
No. 1877/2015 (Disposed of on 18.01.2020), be restored
on its original stage.
(iii). The parties to expedite the suit.
(iv). Notice of Motion No. 695/2020 is, accordingly, disposed of.
{A.G. Santani}
Mumbai. Judge,
Dated : 18.07.2023. City Civil Court, Mumbai.
Dictated on : 18.07.2023.
Transcribed on : 21.07.2023.
Checked and Signed on : 24.07.2023.
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CNR NO. MHCC01-001862-2020. 4 Notice of Motion No.695/2020.
in L.C. Suit No. 1877/2015
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME
25.07.2023 at 2.52 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 18.07.2023.
Judgment/Order signed by P.O. on 24.07.2023.
Judgment/Order uploaded on 25.07.2023.
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