Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 N.M.No.1026 of 2020
CNR:MHCC01-002906-2020
IN THE BOMBAY CITY CIVIL C0URT AT BOMBAY
NOTICE OF MOTION NO.1026 OF 2020
IN
L.C.SUIT NO.1073 OF 2014
Devendra Chunilal Shah ..Plaintiff
V/s.
1. Municipal Corporation of
Greater Mumai & Anr. ..Defendants
Appearance:-
Adv. Rubia Taneja for plaintiff.
Adv. Ms.Vyavahare for MCGM/defendant No.1.
Adv. Shah h/f Adv. P. D. Gandhi for defendant No.2.
CORAM : HIS HONOUR ADDL. SESSIONS
JUDGE
SHRI. R. M. MISHRA
CITY CIVIL COURT, GR. BOMBAY
(C.R. NO.05).
DATE : 09/10/2023.
ORDER
1 This notice of Motion is taken out by the defendant No.2 to
condone the delay of 1232 days with permission to file the written
statement to this defendant No.2.
2 The learned advocate for the defendant No.2 submitted
that the roznama of this proceeding is relevant and necessary to be
taken into consideration while deciding this Notice of Motion. He
-- 1 of 5 --
2 N.M.No.1026 of 2020
submitted that the matter was adjourned several times on the ground
that the matter is going to be settled. The roznama of the year 2017
clearly indicates that both parties were seeking adjournments time to
time on the ground of likelihood of settlement. In the meantime, the
plaintiff had taken out the Chamber Summons. Moreover, the Notice of
Motions taken out by the plaintiff were dismissed in default. In the year
2022 when the defendant No.2 realized that the matter is not settled,
this Notice of Motion is taken out. This suit is filed challenging the
notice of unauthorized construction issued by the MCGM U/s.351 of the
MMC Act and the defendant No.2 is the landlord of the said building.
The learned advocate for the defendant No.2 submitted that it is
necessary to allow this defendant No.2 to participate in this suit to
decide the suit on merit. The defendant No.2 placed reliance on
Vimalkumar Nathmal Goenka V/s. Vinod Kumar Nathmal Goenka,
1999(1) Mh.L.J. 180.
3 On the other hand, learned advocate for the plaintiff
submitted that this defendant No.2 was arrayed during the pendency of
the suit. Inspite of service of writ of summons, no steps are taken by
this defendant No.2 since 2016 to file written statement. The suit
premises is already demolished. It is thus, contended that the Notice of
Motion is liable to be dismissed.
4 In the light of respective submissions, I have carefully gone
through the entire facts and circumstances on record. Perusal of the
roznama of this case clearly indicates that the Chamber summons
No.1230 of 2014 taken out by the defendant No.2 was allowed by an
order dt.05/02/2016. Thereafter, matter was time to time adjourned for
-- 2 of 5 --
3 N.M.No.1026 of 2020
compliance. Accordingly, the order dt.05/02/2016 in the Chamber
Summons No.1230 of 2014 was complied by the plaintiff on
30/08/2016.
5 Thereafter, the plaintiff has taken out another Chamber
Summons. Moreover, Notice of Motions taken out by the plaintiff were
also pending for consideration. In the meantime, it reveals that the
matter was kept for settlement since 1/3/2017 to 13/10/2017. On
17/11/2017, Chamber Summons No.317 of 2016 taken out by the
plaintiff for amendment in the plaint was allowed and the said order
was complied on 23/03/2018. Thereafter, the matter was kept for
hearing on Notice of Motion. On 16/09/20921, the Notice of Motion
No.1720 of 2014 and 621 of 2017 taken out by the plaintiff were
dismissed in default. Though the matter was proceeded for recording
evidence, it reveals that inspite of having written statement of the
defendant No.1, issues are not framed in this case.
6 Considering the aforesaid facts and circumstances, no
doubt, there is substantial delay on the part of the defendant No.2 in
filing the written statement. However, considering the aforesaid
circumstances, the defendant No.2 alone cannot be blamed for delay in
proceeding with the suit. Even if the matter was proceeded for
recording evidence, in the absence of filing of affidavit in lieu of
examination in chief, trial in this suit cannot be said to be commenced.
As discussed earlier, issues are also not framed though there is written
statement of the defendant No.1. I have also gone through the ratio laid
down by the Hon’ble High Court supra. Having regard to the
observations laid down by the Hon’ble High Court supra and in the light
-- 3 of 5 --
4 N.M.No.1026 of 2020
of aforesaid facts and circumstances, I am of the considered view that
no prejudice will be caused to the plaintiff, if the defendant No.2 is
allowed to participate in the suit by permitting him to file the written
statement, by condoning the delay. The plaintiff can be compensated by
awarding costs in view of delay of 1232 days in filing the written
statement by the defendant No.2. Thus, following order is passed.
ORDER
1 Notice of Motion No.1026 of 2020 is allowed subjects to
costs of Rs.3,000/-
2 Delay of 1232 days in filing the written statement of the
defendant No.2 is condoned and the defendant No.2 is permitted to file
the written statement on record subject to payment of costs of
Rs.3,000/- either to the plaintiff or to his advocate till next date.
3 Notice of Motion stands disposed off accordingly.
Date:09/10/2023. (R. M. Mishra )
Judge, City Civil Court,
Gr.Mumbai.
Dictated on :09/10/2023.
Typed on :09/10/2023.
Signed on :09/10/2023.
-- 4 of 5 --
5 N.M.No.1026 of 2020
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
09/10/2023 05.42 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
09/10/2023.
JUDGMENT/ORDER signed by P.O.on 09/10/2023.
JUDGMENT/ORDER uploaded on 09/10/2023.
-- 5 of 5 --