Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM no.695-17 in L.C.SUIT no.2180-12
IN THE CITY CIVIL COURT FOR GREATER BOMBAY
AT BOMBAY.
NOTICE OF MOTION NO. 695 OF 2017
(CNR no. MHCC010025422018)
IN
L.C. SUIT NO. 2180 OF 2012
(CNR no. MHCC010034862012)
1. Sanjay Anand Gavte and anr. ]..Plaintiffs
Versus
1. Mumbai Municipal Corporation
of Gr. Mumbai & ors. ]... Defendants
Coram : M.S. Deshpande, Judge
(Court Room no. 05)
Date : 26th November, 2018.
None for plaintiff.
Mr. Pradeep Patil, advocate for defendant no. 1 & 2.
Defendant no. 3 in person.
ORDER
1. The defendant no. 3 in person has taken out this motion
seeking relief for non suiting the plaintiffs. According to him, evidence
of the defendants is not necessary. Considering, the evidence led by
plaintiffs, it would be a futile exercise wasting time of this Court. The
defendant no. 3 has also prayed for directions to defendant corporation
to demolish the illegal and unauthorized suit premises which are in the
compulsory open space of the Pilla Lodge Building compound.
2. Heard, the defendant no. 3 in person. The plaintiffs and
their advocates are absent. Their absence is not explained. Perused the
affidavit in support of motion and affidavit in reply and the rejoinder.
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2 NM no.695-17 in L.C.SUIT no.2180-12
3. The plaintiffs have filed suit for declaration that the notices
issued under Section 351 of Mumbai Municipal Corporation (M.M.C.
Act) and order passed in furtherance of the same are illegal and bad in
law. They have also prayed for permanent injunction for restraining the
defendants from acting upon the said notice and order. The suit is part
heard. The plaintiffs have closed their evidence on 21.01.2017. It is a
choice of defendant corporation whether to lead evidence or not.
However, after closing of evidence by plaintiffs the suit is pending for
the applications and various notices of motion taken out by the
defendant no. 3. The defendant no. 3 can not compel the defendant
nos. 1 and 2 that they should not file their evidence. Defendant no. 3
may take its own decision about filing of evidence or not when his turn
comes. At this juncture merely by considering the evidence of the
plaintiffs and in absence of evidence of defendant corporation or filing
evidence closing pursis by the defendant corporation, this Court can not
sit for judgment for non suiting the plaintiffs only on the basis of their
evidence.
4. So far as, the defendant no. 3 prayed in the motion about
demolition of illegal and unauthorised suit premises which are
according to defendant no. 3 in the compulsory open space of Pilla
Lodge Building compound etc. are concerned, the scope of the suit is
restricted to the extent of the notice structure mentioned in the
impugned notice and order. For grievances of defendant no. 3 if any
about such illegal and unauthorized structure which is beyond the scope
of impugned notice and order, the defendant no. 3 may take necessary
action permissible under the law for its redressed. The defendant no. 3
has placed reliance on the ratio laid down in the case of Kunda vs.
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3 NM no.695-17 in L.C.SUIT no.2180-12
Haribhau, reported in 2014(5) Mh.L.J. 726 to the effect that the
expression, “may presume” under Section 114 of Evidence Act indicates
judicial discretion to be used by a Presiding Officer of the trial Court in
given facts and circumstances of the case. On careful consideration, it
appears that the Hon'ble High Court has laid down that the plaintiff has
to stand or fall on his own legs. The defendant may be guided by good
discretion to withhold himself if the plaintiffs have failed to discharge
the onus of proof that lay upon them in the battle of litigation.
Considering the ratio, it is crystal clear that the defendants can not be
compelled to lead evidence and its their own choice whether to enter in
witness box or not. Here the defendant nos. 1 and 2 have not yet filed
their evidence and also not filed evidence close pursis. Under such
circumstances, the defendant no. 3 should not haste unnecessary for
early decision when the evidence of all the parties is not completed.
Therefore, the following order is passed:
ORDER
1. The Notice of Motion no.695 of 2018 is dismissed.
2. Parties to bear their own costs of the motion.
sd/
(Dr. M. S. Deshpande)
Ad hoc Judge,
Date : 26.11.2018 City Civil Court, Mumbai.
Dictated on : 26.11.2018
Transcribed on : 27.11.2018
Checked by HHJ on : 28.11.2018
Signed by HHJ on : 28.11.2018
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4 NM no.695-17 in L.C.SUIT no.2180-12
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE AND TIME : 28.11.2018 at 2.55 p.m.
NAME OF STENOGRAPHER : Mrs. Gayatri P. Acharekar
Name of the Judge (With Court
Room no.)
HHJ Shri. M. S. Deshpande
C.R. no.05
Date of Pronouncement of
JUDGMENT/ORDER
26/11/2018
JUDGMENT/ORDER signed by
P.O. on
28/11/2018
JUDGMENT/ORDER uploaded
on
28/11/2018
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