Interim Order 2

Order Details: Order below exhibit
Pdf Text: MHCC010031832022
IN THE BOMBAY CITY CIVIL C0URT AT BOMBAY
ORDER BELOW EXH.9
IN
L.C. SUIT NO. 795 OF 2022
CNR No. MHCC010031832022
1. Vikas Mahendra Agarwal
2. Vishal Mahendra Agarwal
Both having address at 1st Floor,
Old Indrabhuvan Walkeshwar Road,
Mumbai 400 006. ... Plaintiffs
V/s.
1. Designated Officer
Executive Engineer (B & F), 'D'Ward,
Municipal Office, Jobanputra Compound,
Nanachowk, Mumbai 400 007.
2. Municipal Corporation of Greater Mumbai,
SA Body Corporate constituted under the
Mumbai Municipal Corporation Act, 1988
having its address at
Mahapalika Bhavan, Mahapalika Marg,
Opp. C.S.T. Fort, Mumbai 400 001. ... Defendants
Appearance:
Adv. P.D Gandhy for the Plaintiffs.
Adv. Dalal I/b Adv. Gada for Caveator.
Adv.Smt. Kumud Soraan for MCGM/ defendant.
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2 Draft NM in L.C. Suit No.795/2022
CORAM : HER HONOUR ADHOC JUDGE
SMT. A.H. KASHIKAR
CITY CIVIL COURT, GR. BOMBAY
(C.R. NO.05).
DATE : 08.04.2022
ORDER
1. This is an application filed by the plaintiff to stay the
implementation of order on notice of motion dtd. 7.4.2022 and
continuation of status quo for four weeks. To oppose this application
the defendant has replied that suit structure is more than 100 years old
and as per Hon'ble High Court order, no adinterim order can be
granted. The caveator replied that grant of relief of stay would amount
to granting the main relief which is already rejected. The court has
dismissed the notice of motion, so there is no operational order which
can be stayed.
2. Advocate for the plaintiff drew my attention towards O43
(2) and O.41(5) of CPC and submitted that by virtue of O.43 (2), it is
clear that O41(5) is applicable to orders also as like decree as the order
is Appealable. Hence, court can pass order of adinterim relief and stay.
3. No doubt the execution of operational order in decree can
be stayed by the court. O41(5) CPC enable that court to stay the
operation and execution of decree and said provision can be extended
to Appealable orders also by virtue of the provision of O43(2),
however, these must be sufficient ground to do so. Here, it reveals that
alleged structure is very old. Before deciding the motion on merit there
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3 Draft NM in L.C. Suit No.795/2022
was no earlier order of adinterim or status quo which can be continued
till period of appeal is over. Order is passed on merits. Hence, I do not
find any sufficient cause to stay the effect and operation of the order
passed on dtd. 7.4.2022, as even prima facie plaintiff has not satisfied
the authorization of alleged construction.
4. Hence, considering the circumstances, I am not inclined to grant
adinterim relief to the plaintiff till appeal period. Hence, following
order is passed:
ORDER
Application Exh.9 stands rejected.
Date: 8.4.2022.
(A.H.KASHIKAR)
ADHOC Judge,
City Civil Court,
Gr.Mumbai.
(Court Room No.05)
Dictated on :8.4.2022
Typed on : 8.4.2022
Signed on :8.4.2022
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4 Draft NM in L.C. Suit No.795/2022
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
8.4.2022 5.45 p.m. ( K.M. Rana )
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court room
No.)
HHJ Smt. A.H. Kashikar (C.R.No.05)
Date of Pronouncement of
JUDGMENT/ORDER
8.4.2022
JUDGMENT/ORDER signed by P.O.on 8.4.2022
JUDGMENT/ORDER uploaded on 8.4.2022
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