Final Order 1

Order Details: Other
Pdf Text: 1 Review Application No.40 of 2018
CNR:MHCC01-002409-2018
IN THE BOMBAY CITY CIVIL C0URT AT BOMBAY
REVIEW APPLICATION NO.40 OF 2018
IN
NOTICE OF MOTION NO.2088 OF 2017
IN
L.C.SUIT NO.2464 OF 2016
M/s. The Diamond Surgical Dressings Works .. Plaintiff
V/s.
Municipal Corporation of Greater Mumbai
& Ors. .. Defendants
Appearance:-
Adv. Sanket Mungale for plaintiff.
Adv. Bharat Choudhary along with Adv. Vyavahare for MCGM/
defendants.
CORAM : HIS HONOUR ADDL. SESSIONS
JUDGE
SHRI. R. M. MISHRA
CITY CIVIL COURT, GR. BOMBAY
(C.R. NO.05).
DATE : 11/09/2023.
ORDER
This Review Application is filed by the defendants in
respect of the order dt.20/06/2017 passed on draft Notice of
Motion(Notice of Motion No.2088 of 2017).
2 In the light of respective submissions advanced by the
learned advocates for the parties, it reveals that during the pendency of
-- 1 of 7 --
2 Review Application No.40 of 2018
Notice of Motion No.4128 of 2016 the plaintiff made a request to the
defendants for putting up Tarpaulin covering the said open space as
shown in the sketch of the plan annexed to the affidavit filed on record.
Accordingly, after giving an opportunity to both sides, my learned
predecessor by an order dt.20/06/2017 disposed of the Notice of
Motion No.2088 of 2017 by granting permission to the plaintiff to put
Tarpaulin over the suit premises temporarily, till next date with further
directions to the plaintiff to file affidavit and photographs of
compliance. At the same time, liberty was also granted to the
defendants to file affidavit in reply, if it is found that the liberty granted
to the plaintiff was not properly used.
3 While seeking to review the order dt.20/06/2017 learned
advocate for the defendants invited attention of this Court to para 9 of
the said order in which observation has been recorded such as “the
Plaintiff may be permitted to cover-up partially demolished area
temporarily by putting a tarpaulin till disposal of the Notice of Motion
No.4128 of 2016”. Learned advocate for the defendants further
submitted that the intention of the plaintiff for putting Tarpaulin was to
keep the said Tarpaulin covered only till monsoon/rains were over i.e.
till the end of October 2017. He, therefore, vehemently submitted that
the order dt.20/06/2017 passed in the Notice of Motion 2088 of 2017
needs to be reviewed by deleting the line appearing in para 9 on page
No.4
“the Plaintiff may be permitted to cover-up partially demolished
area temporarily by putting a tarpaulin till disposal of the Notice of
Motion No.4128 of 2016”.
4 On the other hand, learned advocate for the plaintiff
-- 2 of 7 --
3 Review Application No.40 of 2018
strongly resisted the Review Application mainly on the ground that the
defendants are harping only on the contentions of impending rains
which is misleading. The application of the plaintiff was also due to
inclement weather and impending rains being one of the reasons at that
point of time, therefore, grant of relief for putting the Tarpaulin is not
restricted only up to rainy season. Learned advocate for the plaintiff
further submitted that there is delay in taking this Review Application
which is yet not condoned. It is submitted that the reliefs in this Review
Application are not within the purview of Order XLVII of Code of Civil
Procedure (hereinafter referred to as the CPC). Learned advocate for
the plaintiff in support of his submissions placed reliance on S.
Madhusudhan Reddy V/s. V. Narayana Reddy and Ors., 2022 LiveLaw
(SC) 685.
5 Before proceeding to consider the factual aspect of the
case, it is necessary to consider the provisions of Order XLVII Rule 1 r/w.
Section 114 of CPC in the light of guidelines laid down by the Hon’ble
Supreme Court supra in which it is specifically laid down
“
A review application would be maintainable on (i)
discovery of new and important matters or evidence which,
after exercise of due diligence, were not within the
knowledge of the applicant or could not be produced by
him when the decree was passed or the order made; (ii) on
account of some mistake or error apparent on the face of
the record; or (iii) for any other sufficient reasons.”
The words “
for any other sufficient reasons” has
been held to mean that “
a reason sufficient on grounds, at
least analogous to those specified in the rule”.
-- 3 of 7 --
4 Review Application No.40 of 2018
6 In this background, while appreciating the facts of the
present Review Application, it is significant to note that in the Notice of
Motion No.2088 of 2017 in terms of prayer clause (a), the plaintiff has
sought the order for the relief prayed in the affidavit dt.05/05/2017,
06/05/2017 and 05/06/2017 for permission to put Tarpaulin to cover
the part portion of the suit premises i.e. part of CI shed/Gala No.9
admeasuring about 105.05 sq. mtrs., as shown in the sketch plan
annexed to the plaintiff’s affidavit dt.06/05/2017. In the affidavit in
support of Notice of Motion No.2088 of 2017, the plaintiff has
specifically contended in para 2 that Notice of Motion taken out by the
plaintiff came to be delayed due to various circumstances beyond the
control of concerned and the rainy season was about to commence
which was going to damage the suit premises and valuable articles lying
in the suit premises requiring protection of the same for which this
Notice of Motion is taken out. Further, in para 3, the plaintiff has
further contended that this application is being submitted in order to
comply with the technical requirement and procedure so that this
Hon’ble Court may be in a position to pass further interim order which
is urgently required in view of rainy season that has been already
commenced.
7 Accordingly, while passing the order dt.20/06/2017, my
learned predecessor observed in para 8 of the order that the roznama
dt.24/10/2016 records that partial demolition of the suit property was
already made and the learned advocate for the plaintiff stated that the
plaintiff would not reconstruct the suit premises. It is further observed
that though the contention of the defendant is that the said portion is
not covered in the suit premises, photographs filed on record do reveals
-- 4 of 7 --
5 Review Application No.40 of 2018
that some articles are lying open. Therefore, in para 9, my learned
predecessor found that the Notice of Motion No.4128 of 2016 is already
pending wherein the parties have been directed to main status quo and
in view of rejecting the request of the plaintiff by the defendants to put
Tarpaulin over the demolished premises, the plaintiff may be permitted
to cover-up partially demolished area temporarily by putting a tarpaulin
till disposal of the Notice of Motion No.4128 of 2016. However, it is
again significant to note that while passing the operative order, my
learned predecessor has passed specific order that the Notice of Motion
is disposed of keeping in view the interim direction dt.24/10/2016 in
Notice of Motion No.4128 of 2016, directing both the parties to
maintain status quo, with liberty to the plaintiff to put tarpaulin over
the suit premises temporarily and without using any permanent
material, till next date.
8 Therefore, having regard to the averments in the affidavit
of the plaintiff in support of Notice of Motion No.2088 of 2017, it is
apparent that it was because of the rainy season which was to
commence which could damage the suit premises and valuable articles
lying therein, this Notice of Motion was taken out by the plaintiff.
Therefore, what is relevant to be looked into, is the operative order and
not the observations which are discussed by learned predecessor while
determining the points for consideration. Therefore, in my considered
view, the observations recorded by my learned predecessor in para 9 of
the order dt.20/06/2017 are mere surmises and therefore, in my view,
said observations in para 9 do not come within the purview of order
XLVII Rule 1 of CPC.
9 So far as the issue of limitation is concerned, defendants
-- 5 of 7 --
6 Review Application No.40 of 2018
have sought the relief of condonation of delay by way of amendment in
the Review Application in view of the objection raised by the plaintiff.
The grounds put forth for seeking condonation of delay prima facie
appear to be acceptable while considering this Review Application so as
to condone the delay. In this circumstances, I am of the considered view
that even if delay is condoned for considering this Review Application,
in my view, the observations made in para 9 of the said order are mere
surmises and these observations cannot be compared with the operative
order which has been passed for temporary period as mentioned in the
order by giving opportunity to the plaintiff to put Tarpaulin over the suit
premises, till next date. Therefore, I come to the conclusion that the
observations made in para 9 of the order dt.20/06/2017 neither come
within the scope of review nor these observations can be said to be a
mistake or error as provided under Section 152 of CPC. Thus, following
order is passed.
ORDER
1 Review Application No.40 of 2018 stands disposed off
accordingly.
2 Both parties are directed to argue on the Notice of Motion
No.4128 of 2016 on next date.
3 No order as costs.
Date:11/09/2023. (R. M. Mishra )
Judge, City Civil Court,
Gr.Mumbai.
Dictated on :11/09/2023.
Typed on :11/09/2023.
Signed on :11/09/2023.
-- 6 of 7 --
7 Review Application No.40 of 2018
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
11/09/2023 05.54 p.m. (Santosh B. Sawant )
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court room
No.)
HHJ Shri. R. M. Mishra
(C.R.No.05)
Date of Pronouncement of
JUDGMENT/ORDER
11/09/2023.
JUDGMENT/ORDER signed by P.O.on 11/09/2023.
JUDGMENT/ORDER uploaded on 11/09/2023.
-- 7 of 7 --