Order 1

Order Details: Order below exhibit
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IN THE BOMBAY CITY CIVIL COURT, AT MUMBAI
ORDER BELOW EXH. NO. 11
IN
L.C. SUIT NO. 1334 OF 2018
Sampatrao Sonavane .. Plaintiff
Versus
Municipal Corporation of Gr. Mumbai .. Defendants.
CORAM : HIS HONOUR JUDGE
SHRI K.P.NANDEDKAR
(C.R.NO.11)
DATE : 21st February, 2019
Mr. K.P. Tiwari ld. adv. for plaintiff.
Ms. Tondvalkar, ld. adv. for defendant/BMC.
O R D E R
1. This application is filed by plaintiff for staying order dated
20.02.2019 passed by this court in N/m No. 4614/2018 by which said
N/m came to be rejected. It is contended that interim order is
continued from 15.02.2018 and plaintiff is intending to prefer Appeal
against the order passed by this Court. Therefore for 8 weeks the order
passed by this Court should be stayed.
2. Defendant/BMC has resisted the application by filing say
contending that there is no question of continuation of earlier order and
as per Order 41 Rule 5 of CPC, Order passed by this Court is not
executable hence it cannot be stayed.
3. Plaintiff's advocate in support of contention raised in the
application has placed reliance on the case between Kranti Mohan Vs.
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Fatechand Vasuram reported in AIR 1982 Bombay 263 in which it is
observed that
" Before parting, I may incidentally refer to a
rather disturbing development in the trial Court.
After impugned order was passed, the learned
Counsel for the defendant no. 1 applied for the
stay of the order for a period of two weeks to
enable him to approach this Court to get interim
and urgent orders. This motion was rejected,
though on the ground that since the receiver was
not to take possession of a certain period, no
prejudice would be caused to the defendants.
However, the rigour of the order was not wiped
out, since while rejecting the motion itself the
learned Judge observed and stipulated that if the
1st defendant did not give an undertaking as
prescribed within one week, then it would be
taken to mean that he did not wish to avail of the
concession of the payment ordered to him under
the order. The inevitable implication of this
order is that if such an undertaking was not given
within one week, then it would convey to the
court the reluctance of the defendants to exercise
the option. The further necessary consequence
would obviously be serious in the receiver getting
a clear direction thereby to take charge of the
property without waiting for any further period.
If that be so, then denying a short period of two
weeks for the defendants to move this Court
appears to be rather harsh and certainly
unjustified apart from being not quite fair. It
cannot be underestimated that it is privilege of a
Court to pass an order one way or the other on
merits, in accordance with law, yet a laudable
principle is implicit in the system to give a fair
deal to each of the litigants who knocks the door
of the Court and implicit therein is a further
laudable principle that every litigant who is
aggrieved by the order of the Court of the first
instance has a legitimate right to move the higher
Court to ask for redress, and therefore, a
reasonable opportunity should normally be given
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in that behalf to all the litigants, provided of
course the prayer on the face of it does not
appear to be frivolous or vexatious. This
principle is essential to be preserved so as to
instill a sense of confidence in the system of
administration of justice."
4. In the light of observations from cited case, earlier order
dated 15.02.2018 passed in the matter stands continue for 4 weeks.
Hence I proceed to pass following order.
O R D E R
1. Application Exh. 11 is allowed.
2. Earlier order dated 15.02.2018 stands continue for 4
weeks.
(K.P.Nandedkar)
Judge,
City Civil Court,
21/02/2019 Gr.Bombay
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGEMENT/ORDER”
UPLOAD DATE TIME NAME OF STENOGRAPHER
22.02.2019 04.15PM Y.S. Patil (H.G.)
Name of the Judge HHJ Shri K.P.Nandedkar (CR No.11)
Date of Pronouncement of Judgment/Order. 21.02.2019
Judgment/order signed by P.O on 22.02.2019
Judgment/order uploaded on 22.02.2019
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