Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM 1269-19 in Suit No. 2627-13
CNR NO.MHCC01 00328219
IN THE COURT OF CITY CIVIL FOR GREATER BOMBAY
AT BOMBAY
NOTICE OF MOTION NO. 1269 OF 2019
IN
L.C. SUIT NO. 2627 OF 2013
Nitin Raghu Shetty ....Plaintiff
V/s.
The Municipal Corporation of Greater Mumbai ..... Defendant
Coram : Sanjay N. Yadav, Judge
(Court Room no. 05)
Date : 2nd August, 2019
Appearance:
Ld. Adv. Mr. Tejas Kasar for the plaintiff.
Ld. Adv. Smt. Smita Tondwalkar for defendant/MCGM.
ORDER
1. Perused the application and say. The defendant seeks to file the
written statement in the suit.
2. Heard Learned Advocate for the plaintiff and Learned Advocate
for the defendant corporation. The order of no written statement was
passed against the plaintiff on 25.03.2015.
The defendant corporation by this notice of motion seeks to set
aside the order of no written statement and seeks to permission to file
the written statement. It is contended that the suit of the plaintiff was
dismissed in default in the year 2016 and it was restored on
08.10.2018. The matter was posted for evidence.
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2 NM 1269-19 in Suit No. 2627-13
It is contended by the plaintiff that the grounds raised in the
notice of motion cannot be entertained.
The suit was dismissed for want of prosecution. The plaintiff was
restored the suit after two years.
The license of the plaintiff is cancelled in the suit. It is contended
by the corporation that the absence of written statement will cause
prejudice to the case of the defendant. The defendant would not be in a
position to defend the action.
The Hon'ble High Court in the case of Sopan Maruti Thopte &
Anr. V/s. Pune Municipal Corporation & Anr. in paragraph no. 28,
had observed as follows:
''28. Considering the aforesaid decisions it should be borne in
mind before issuance of an injunction that it is a discretionary and an
equitable relief. It is not mandatory that for mere asking such relief
should be given. It is not a charity at the cost of public. However, we
make it clear that the procedure established by law has to be followed
by the public authorities, whether it be the State or a local body,
including the Municipal Corporations. At the same time, the procedural
lapses, unintentional or intentional, which do not seriously affected the
substantive rights of a person, ought not to result in adinterim orders
which protect illegality having already been committed by the plaintiff
and to give licence of continuing fruits of such illegality for years.
Violators of law should not liberally be allowed to take protection of
Court of law by obtaining adinterim injunctions which have the effect
of continuing such violation.''
In the light of the observation of the Hon'ble Court, it is required
to seen the same time, the procedural lapses, unintentional or
intentional, which do not seriously affected the substantive rights of a
person, ought not to result in decree with the suit which protect alleged
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3 NM 1269-19 in Suit No. 2627-13
illegality having already been committed by the plaintiff and to give
licence of enjoying fruits of such illegality. Violators of law should not
liberally be allowed to take protection of Court of law by obtaining
decree of the Court which have the effect of continuing such violation.
The allegation is of unauthorised constructions have effect on the
society. The public body i.e. corporation therefore need to be provided
opportunity to put forth its case. The plaintiff also will get opportunity
to prove its case.
Considering the fact that the suit of the plaintiff was restored
after two years and in order to provide a fair opportunity to the
defendant, the order of no written statement deserves to be set aside
and the defendants needs to be permitted to file the written statement.
In the result, following order is passed.
ORDER
1. The order of no written statement against the defendant/corporation
is set aside.
2. The defendant / corporation is permitted to file the written
statement.
3. The Notice of Motion No. 1269/2019 stands disposed off.
(Sanjay N. Yadav)
Judge,
Date : 02.08.2019 City Civil Court, Mumbai.
Dictated on : 02.08.2019
Transcribed on : 03.08.2019
Signed by HHJ on : 09.08.2019
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4 NM 1269-19 in Suit No. 2627-13
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE AND TIME : 13.08.2019 at 12.17 p.m.
NAME OF STENOGRAPHER : Mrs. K.S.Bhosale
Name of the Judge (With Court
Room no.)
HHJ Shri. Sanjay N. Yadav
C.R. no. 05
Date of Pronouncement of
JUDGMENT/ORDER
02.08.2019
JUDGMENT/ORDER signed by
P.O. on
09.08.2019
JUDGMENT/ORDER uploaded
on
13.08.2019
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