Final Order 1

Order Details: Notice of Motion
Pdf Text: NM No.744/2020 in NM No.377/2011 1 L.C. Suit No.290/2011
CNR No. MHCC01-002036-2020
THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO. 744 OF 2020
IN
NOTICE OF MOTION NO. 377 OF 2011
IN
L.C. SUIT NO. 290 OF 2011
Shri. Prakash Sukhdeosingh Thakur )
Aged about 38 years, residing at the )
hut/premises situated at Ganesh Patra )
Chawl behind Ganesh Niwas, Iraniwadi, )
Ganesh Niwas Compound, Prabhavevi, )
Mumbai – 400 025 ) …Plaintiff
Vs.
1. Mumbai Municipal Corporation )
A body corporation incorporated under the )
Mumbai Municipal Corporation Act, 1888 )
having its Head Office at Mahapalika Bhuvan)
Mahapalika Marg, Fort, Mumbai – 400 001 )
2. Dr. Ness Faram Irani )
Aged about 30 years, )
3. Dr. Jehan Faram Irani, )
Aged about 24 years, Both residing at )
South Fork, 815, Jamshedji Road, Dadar )
T.T. Mumbai – 400 014. )
...Defendants
APPEARANCE:-
Ld. Adv. Rajendra K. Yadav for the plaintiff.
Ld. Adv. Kumawat for the defendant/MCGM.
Ld. Adv. Gayatri Sharma for defendant No.2 and 3.
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NM No.744/2020 in NM No.377/2011 .. 2 .. L.C. Suit No.290/2011
CORAM : HER HONOUR AD-HOC JUDGE
SMT. C.P. JAIN (C.R. NO.06)
DATED : 4th NOVEMBER, 2020.
O R D E R
This Notice of Motion is moved by plaintiff praying to set
aside the order dated 03.02.2020 thereby dismissing his Notice of
Motion No.377/2011 and restore the same to its original position.
2. In the affidavit filed in support of notice of motion, it is
averred by plaintiff that on 03.02.2020, he had come in the court. On
account of heavy rush in court hall, he was not present in the court hall
when his Notice of Motion No.377/2011 which was at Sr. No.19 of
that’s day’s cause list was called out. On same day, he had another
Notice of Motion listed at Sr. No.23 of that day’s cause list. As he could
hear the calling out this Notice of Motion, i.e. Sr. No.23 he had
appeared and the ad-interim order was extended. He was under
impression that the ad-interim orders in both of the matters at Sr. No.19
and Sr. No.23 were extended. However, one day before of filing of this
Notice of Motion, his advocate from downloaded roznama, noticed that
the Notice of Motion No.377/2011 is dismissed for want of prosecution.
According to him, his advocate was busy on 03.02.2020 in Small Causes
Court in Part heard matter Marji Application No.149/2018 and Marji
Application No.261/2016. Therefore, his advocate was absent on
03.02.2020 in this court. There was no other ill intention in not
attending the Notice of Motion No.377/2011 on 03.02.2020. If his
Notice of Motion is not allowed, he will suffer. On the contrary, if the
Notice of Motion No.377/2011 is restored, defendant will not be
prejudiced. For aforesaid reasons, he has prayed for allowing his Notice
of Motion.
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3. Defendant has resisted the Notice of Motion on the ground
that no sufficient reasons are made out by plaintiff to set aside the order
dated 03.02.2020. The reasons given in the Notice of Motion are not
substantiated by any document, therefore cannot be believed. For
aforesaid reasons, defendants have prayed for dismissing the Notice of
Motion.
4. Heard both the learned advocates. Perused the file. The
Notice of Motion No.377/2011 in L.C. Suit No.290/2011 was listed at
Sr. No.19 on the cause list of 03.02.2020. Similarly, the another L.C.
Suit No.3423/2023 of plaintiff was listed at Sr. No.23 of same day’s
cause list. The aforesaid averments in paragraph-3 of his Notice of
Motion is substantiated by the cause list of 03.02.2011. Therefore, there
is no reason to disbelieve the averments in this Notice of Motion on this
fact. The ad-interim order in Sr. No.23 i.e. L.C. Suit No.3423/2013 was
extended. Plaintiff was personally present in L.C. Suit No.3423/2013.
Therefore, the reasons in the Notice of Motion with respect to the fact
that plaintiff was unable to hear the earlier calling of Notice of Motion
No.377/2011 in L.C. Suit No.290/2011 at Sr. No.19 and therefore, he
did not make mention can be believed. This fact was was taken into
account and reflected in the roznama of 05.02.2020 in this Suit itself by
myself. Plaintiff was granted ad-interim relief till 03.02.2020. As the
reasons made out in present Notice of Motion are substantiated and
worth believable, plaintiff needs to be given opportunity for hearing his
Notice of Motion. There is also nothing on record to disbelieve the
averments in the Notice of Motion with respect to fact of his advocate
being busy in Small Causes Court as plaintiff personally was present in
the Court. If plaintiff is given opportunity, then no prejudice will be
caused to defendants. On the contrary, if Notice of Motion is rejected,
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plaintiff will suffer irreparable loss and the very purpose of filing of the
Notice of Motion No.377/2011 and the suit will be frustrated.
Therefore, I accede with arguments of learned advocate of plaintiff as
against the arguments of learned advocate for defendants. The Notice of
Motion of plaintiff deserves to be allowed on costs. Plaintiff needs to be
given opportunity to contest his Notice of Motion No.377/2011 by
setting aside the order dated 03.02.2020. In result, I proceed to pass
following order.
ORDER
1. Notice of Motion No.744/2020 is hereby allowed subject to costs
of Rs.500/- (Rs. Five Hundred Only), to be paid by plaintiff to
D.L.S.A. Mumbai, on or before next date.
2. On depositing of costs, the order dated 03.02.2020 of dismissing
the Notice of Motion No.377/2011 shall stand set aside and
thereafter the Notice of Motion No.377/2011 shall be restored to
its file.
3. Notice of Motion No.744/2020 is accordingly disposed of
accordingly .
(C.P. Jain)
Ad-hoc Judge, (C.R.No.06)
Date : 04.11.2020 City Civil Court, Gr. Mumbai
Dictated on :04.11.2020.
Transcribed on :04.11.2020 & 05.11.2020.
Signed on :06.11.2020
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE AND TIME : 06.11.2020, 12.31 pm.
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
04.11.2020
JUDGMENT/ORDER signed by P.O.
on
06.11.2020
JUDGMENT/ORDER uploaded on 06.11.2020
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