Final Order 1

Order Details: Notice of Motion
Pdf Text: :1: NM 133219 IN SU 331508
CNR NO.MHCC01-003452-2019
IN THE CITY CIVIL COURT FOR GREATER BOMBAY
AT BOMBAY
NOTICE OF MOTION NO.1332 OF 2019
IN
S.C. SUIT NO.3315 OF 2008
Lohana Bhuvan Coop. Housing Society Ltd. ]....Plaintiff.
Versus
1. Pragatee Construction & Ors. ]... Defendants.
CORAM : HIS HONOUR JUDGE
SHRI A.N. MARE
(C.R. No.11)
DATE : 12th June, 2019.
Mr. Hardik Desai h/f Mr. Pradip Gandhy, Advocate for plaintiff.
Mr. C.D. Lonkar i.b. Bhave and Co. Advocate for defendant No.1 and 2.
Ms. Joshi, Advocate for defendant Nos.11 to 13 and 15 to 17.
O R D E R
1. By this Notice of Motion defendant Nos.11 to 13 and 15 to 17
have sought setting aside of Roznama/ Order dated 11.7.2017 and
permission for filing the Affidavit in reply to the plaintiff's Notice of
Motion No.1018 of 2015.
2. In brief, it is their case that defendant No.10 is Trust of which
defendant Nos.11 to 13 and 15 to 17 are the newly appointed Trustees.
They are impleaded as defendants by an order dated 4.11.2015. The
instructions for filing reply to the Notice of Motion as well as for
drafting Written Statement were sought by their Lawyer. The
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instructions in drafting Written Statement were given, however, such
instructions for filing reply to the Notice of Motion were not given. It
was discussed that since no relief was claimed in the Notice of Motion
against these defendants there was no requirement to file reply.
Hence, on 11.7.2017 a statement was made before the Court to that
effect and it was recorded in Roznama dated 11.7.2017. In fact the
defendants were under misunderstanding that no relief is claimed
against them whereas the relief in the Notice of Motion, if granted,
would directly affect these defendants. Therefore, it has become
necessary for them to file reply to the plaintiff's Notice of Motion as
prayers for subdividing the plot by putting fence etc is sought by the
plaintiff.
3. The plaintiff has not filed reply to the Notice of Motion.
4. Perused. Heard.
5. The Advocate for defendant Nos.11 to 13 and 15 to 17 submitted
that, void an Order dated 4.11.2015 this Court allowed these
defendants to come on record of the suit. The Notice of Motion
No.1018 of 2015 was to be argued, the Advocate for the defendants
made a statement that these defendants do not intend to file reply to
the Notice of Motion. Further, according to her, such statement was
made under misunderstanding that no relief is sought against these
defendants. According to her the prayer Clause (d) in Notice of Motion
No.1018 of 2015 is seeking division of the plots which is not permissible
in the facts and circumstances of present case. Therefore, according to
her it is in the interest of Justice to allow these defendants to file reply
to the Notice of Motion taken out by the plaintiff.
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6. The advocate for plaintiff opposed the Notice of Motion
contending that this is a classic case of approbate and reprobate.
According to him the statement recorded in Roznama dated 11.7.2017
is a voluntary statement. Therefore, now the defendants cannot be
allowed to give a go bye to said statement. He submitted that the relief
in Notice of Motion No.1018 of 2015 did not seek subdividing of plots
but seeks to place a fence. According to him subdividing of plots is
much complexed process and it cannot be concluded by mere fencing of
such land.
7. Having heard the advocates for applicants/ defendants and the
advocate for plaintiff, it needs to be considered that we have adversarial
system of litigation. In such system we have procedural laws in place
which provide opportunity to both the parties to suit to put their
versions before the Court so that the Court will have a complete picture
before it and will decide the matter completely and effectively. The
Rules of Procedure are in place to see that a fair opportunity is given to
all the parties to the suit.
8. It is undisputed in this case that on 11.7.2017 a statement was
made by the Advocate for these defendants that these defendants do not
intend to file reply to the Notice of Motion No.1018 of 2015. However,
this statement is made based on the belief that no relief is claimed
against these defendants. This is evident from the statement itself
recorded in Roznama dated 11.7.2017.
9. Now it is the defendant's case that their belief, that no relief is
claimed against them, is mistaken as the relief Clause (d) in Notice of
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Motion No.1018 of 2015, if granted, will harm their interest. Therefore
now they are intending to file reply.
10. Considering the nature of suit, the nature of relief sought and the
circumstances of this case, in order to do complete justice, this Court is
of the opinion that an opportunity can be given to these defendants to
file their say, since the order passed in Notice of Motion No.1018 of
2015 may affect their rights. A statement made by Advocate, though
after consulting the litigant, if made under mistaken belief may not be
conclusive to deny them an opportunity to put up their case, at least in
the matter of procedural aspects. Therefore, the Notice of Motion can
very well be allowed to that extent. However, the delay cause by these
defendants in the hearing of Notice of Motion No.1018 of 2015 needs to
be compensated by them.
11. At the same time, it has to be mentioned that a statement
recorded in Roznama dated 11.7.2017 cannot be stuck down though
these defendants can be permitted to file reply to the Notice of Motion.
This is so because admittedly such statement was made and is forming
the part of the record of the Court. Hence, the Order:
ORDER
1. Notice of Motion No.1332 of 2019 is partly allowed in terms
of prayer clause (b) subject to payment of costs of Rs.2000/
payable to the plaintiff.
Sd/
(A.N. MARE)
Judge,
12/06/2019 City Civil Court, Mumbai.
Dictated On : 12.06.2019
Transcribed on : 13.06.2019
HHJ Signed on : 14.06.2019
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF
THE ORIGINAL SIGNED JUDGMENT/ORDER.”
Upload Date Upload Time Name of Stenographer
14.06.2019 a.m. V.U. Pawar (H.G.)
Name of the Judge (With Court
Room No.)
HHJ SHRI A.N. MARE
(CR 11)
Date of Pronouncement of
JUDGEMENT /ORDER
12.06.2019
JUDGEMENT /ORDER signed by
P.O. on
14.06.2019
JUDGEMENT /ORDER uploaded
on
14.06.2019
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