Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM no744-2018 L.C.SU no. 2511-2016
CNR :MHCCO1 002736 2018.
IN THE CITY CIVIL COURT FOR GREATER BOMBAY
AT BOMBAY
NOTICE OF MOTION NO.744 OF 2018
IN
L.C. SUIT NO.2511 OF 2016
Noor Khan S/O Gaffer Khan ]...Plaintiff.
Versus
The Municipal Corporation of ]
Greater Mumbai. ]... Defendants
Coram : M.S. Deshpande, Judge
(Court Room no. 05)
Date : 26th February, 2018.
Mr. R. S. Singh, advocate for plaintiff.
Ms. Patil, advocate for defendant BMC.
ORDER
1. In a suit for declaration that the action of demolition of the
suit premises is illegal, and for relief of restitution/ reconstruction of the
suit premises, the defendant Corporation has taken out this notice of
motion for allowing it to file written statement and set aside the order
dated 10.03.2017.
2. The plaintiff has filed reply and strongly opposed to grant
any relief. According to the plaintiff, it will be an abuse of process of
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2 NM no744-2018 L.C.SU no. 2511-2016
law. The defendant Corporation has also not filed the written
statement alongwith notice of motion.
3. On going through the affidavit filed in support of the notice
of motion, it appears that the defendant has put forth two reasons for
its failure to file written statement well within time viz. the defendant
being a statutory and public body and a vast organization and due to
heavy workload and election duty of the concerned officer, the
defendants failed to file written statement well within time. Secondly,
it has stated that the written statement was kept ready for affirmation.
However, due to its misplacement and thereafter, due to busy schedule
of the concerned officer, it could not be affirmed.
4. The Learned Advocate for the defendant made submissions
in consonance with the statements made in the affidavit. According to
her, considering the nature of the suit it is necessary to allow the
defendant to file written statement on record as the notice structure
was unauthorized and demolished after following due process of law.
In absence of written statement these facts cannot be brought on
record.
5. On the other hand, the Learned Advocate for the plaintiff
submitted that the defendant has not filed even copy of the written
statement with the notice of motion and there is no sufficient cause for
allowing it to file written statement.
6. On perusal of the record, it appears that the writ of
summons was duly served on the defendants on 15.11.2016 and the
matter was adjourned from time to time for filing of written statement.
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Thereafter, on 10.3.2017, an order to proceed without written
statement of the defendant was passed. Thereafter, nine dates i.e. from
3.4.2017 to 2.2.2018 were lapsed. The defendant did not file written
statement during that period i.e. from April, 2017 to January, 2018.
7. So far as the reasons for failure to file written statement
which are put forth by the defendant Corporation are not sufficient to
set aside the order. Moreover, the defendant has not annexed the copy
of written statement to be filed alongwith the notice of motion. Thus,
no case is made out for condoning the delay and set aside the order to
proceed without written statement. Therefore, the following order is
passed:
ORDER
1. Notice of Motion no.744 of 2018 is dismissed.
2. Parties to bear their respective costs.
Sd/
(M.S. Deshpande)
Judge,
City Civil Court, Mumbai.
Dictated on : 26/02/2018.
Transcribed on : 27/02/2018
Signed by HHJ on : 03/03/2018
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
UPLOAD DATE AND TIME : 03.03.2018 At 03.30 p.m.
NAME OF STENOGRAPHER : Mrs. V. U. Pawar
Name of the Judge (With Court
Room no.)
HHJ Shri. M. S. Deshpande
C.R. no.05
Date of Pronouncement of
JUDGMENT/ORDER
26.02.2018
JUDGMENT/ORDER signed by
P.O. on
03.03.2018
JUDGMENT/ORDER uploaded
on
03.03.2018
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