Final Order 1

Order Details: Miscellaneous appeal
Pdf Text: CNR NO : MHCC01-002759-2020. .1. Misc. Application No. 43/2020 in
L.C. Suit No. 10103/1991.
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
REVIEW PETITION NO. 43 OF 2020.
IN
CHAMBER SUMMONS NO. 886 OF 2013.
IN
L.C. SUIT NO. 10103 OF 1991.
Arun Nigjibhai Mehta and the Others. …......… … PLAINTIFFS.
V/s.
Link Palace CHS Ltd.and the Others. ...……….. … DEFENDANTS.
CORAM : SHRI. A.G. SANTANI.
(Court Room No.11).
DATED : 17th October, 2023.
APPEARANCES :
Mr. Sandeep Hirvadekar, Ld. Advocate for Plaintiff No. 1.
Mr. R.R. Sharma, Ld. Advocate for Plaintiff Nos. 2 to 11.
Mr. Tushar Goradia, Ld. Advocate for Defendant No. 1.
Mr. S.C. Khandagale, Ld. Advocate for Defendant No. 17/MCGM.
01. Plaintiff No.1 - Mr. Arun Nigjibhai Mehta has taken out this
Review Petition for setting aside the Order dtd. 24.11.2014, passed on
Chamber Summons (Ch/s.) No. 886/2013, allowing the transposition of
defendant Nos. 4 to 13 as plaintiff Nos. 2 to 11. Further, this petition is
filed for directing their re-transposition as defendant Nos. 4 to 13 and
for condonation of delay in filing of this petition. Perused this petition,
his supporting affidavit, reply of plaintiff Nos. 2 to 11 and written notes
of the parties on this petition. Heard.
02. Considering the record, the points for determination, along
- with my findings and the reasons therefor, are as under :
Sr. No. POINTS FINDINGS
(i). Whether plaintiff No. 1 could explain
satisfactorily the delay in filing of this
Review Petition? …......………………… .....No.
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CNR NO : MHCC01-002759-2020. .2. Misc. Application No. 43/2020 in
L.C. Suit No. 10103/1991.
(ii). Whether the Order dtd. 24.11.2014,
passed in Ch/s. No. 886/2013, needs to
be reviewed? …..……………………….. …. No.
(iii). What Order ? .............…....................... …. As per final Order.
-: REASONS FOR THE FINDINGS :-
AS TO POINT NOS. 1 AND 2 :
03. As these points are interconnected, to maintain the brevity,
I am taking the same for a joint discussion. By this petition, plaintiff No.
1 contended that originally, plaintiff Nos. 2 to 11 were joined in the suit
as defendant Nos. 4 to 13. They did not submit their written statement
in this suit till 24.04.2013, when they took out the said Ch/s. for their
'transposition'. However, their Ch/s. was without any merits, illegal and
not maintainable. Moreover, it was barred by law of limitation and their
conduct was against plaintiff No.1. As such, the said Order is erroneous
and pre-judicial to his interest. At that time, this Court did not consider
the repercussions of their transposition as plaintiff Nos. 2 to 11. On the
aspect of delay, he submitted that the attitude of plaintiff Nos. 2 to 11 is
continuously hostile against him and therefore, it was continuous cause
of action for filing this petition. Assailing this petition, plaintiff Nos. 2 to
11 submitted that it is not maintainable in law and there is no error on
the face of record. This petition is also time barred. Rather, plaintiff No.
1 was never interested to proceed with this matter.
04. Considering the rival submissions, at the outset, it is worth
notable that by filing this petition, the only anxiety of plaintiff No.1 is to
get reviewed and set at rest the Order dtd. 24.11.2014, passed in Ch/s.
No. 886/2013, and for re-transposing plaintiff Nos. 2 to 11 as defendant
Nos. 4 to 13. However, as this petition is filed after more than 5 years of
the said Order, it is time barred as per Clause 137 of the Limitation Act,
1963. Though, to justify this delay, plaintiff No. 1 contended that as the
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CNR NO : MHCC01-002759-2020. .3. Misc. Application No. 43/2020 in
L.C. Suit No. 10103/1991.
attitude of plaintiff Nos. 2 to 11 was 'hostile' against him, there was the
continuous cause of action to file this petition. However, his justification
is hard to accept. Barring this ground, this petition is silent to infer any
reason for condonation of such inordinate delay. Additionally, by way of
this petition, plaintiff No. 1 is challenging this Order on Ch/s. mainly on
the counts that the said Ch/s. was not maintainable in the eyes of law
and it was without any merits. More so, it was barred by the limitation
and this Court committed error by transposing defendant Nos. 4 to 13,
without considering the repercussions thereof. Needless to say that this
Court is not seating as the Appellate Court to reconsider propriety of the
Order, passed in Ch/s. No. 886/2013. Further, the powers to review this
Order are very reconstructed one and available only when there is some
'error on face of the record'. Therefore, the grounds so raised by plaintiff
No.1 do not fall within the restricted powers of this Court to review the
said Order. In the circumstances, I am of the opinion that the petition is
not tenable being time barred and as falls beyond the scope of 'review'.
As such, leaving plaintiff No. 1 to exercise his remedies, legally available
to him, the present petition is liable to be dismissed. Hence, I answered
point Nos.1 and 2 in the negative and to answer point No. 3, I pass the
following Order :
-: O R D E R :-
(i). Review Petition No. 43/2020 stands dismissed.
(ii). Review Petition No. 43/2020 is, accordingly, disposed of.
Sd/-
{A.G. Santani}
Mumbai. Judge,
Dated : 17.10.2023. City Civil Court, Mumbai.
Dictated on : 17.10.2023.
Transcribed on : 24.10.2023.
Checked and Signed on : 30.10.2023.
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CNR NO : MHCC01-002759-2020. .4. Misc. Application No. 43/2020 in
L.C. Suit No. 10103/1991.
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME
02.11.2023 at 01.40 p.m.
Name of the Stenographer
Mrs. S.R. Mejari
Name of the Judge (with Court Room No.) HHJ Shri A.G. Santani
(Court Room No.11).
Date of Pronouncement of Judgment/Order 17.10.2023.
Judgment/Order signed by P.O. on 30.10.2023.
Judgment/Order uploaded on 02.11.2023.
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