Final Order 1

Order Details: Notice of Motion
Pdf Text: N.M.No.1152 of 2020 Order
MHCC010036002020 Presented on : 14.03.2020
Registered on : 14.03.2020
Decided on : 23.10.2024
Duration : 04 07 09
Years Months Days
IN THE COURT OF CITY CIVIL FOR GREATER BOMBAY AT
BOMBAY
NOTICE OF MOTION NO.1152 OF 2020
IN
SHORT CAUSE SUIT NO.907 OF 2021
(CNR NO. MHCC010036002020)
1 M/s New Sarnath Co-operative Housing Society
Ltd.
having their address at 59 B Bhulabhai Desai
Road, Mumbai 400026.
2 Mr. Madhukar Singhania (Chairman)
Adult, Mumbai Inhabitant,
residing At Flat No.24-B
M. S. New Sarnath Co-operative Housing Society
Ltd.
having their address at 59 B Bhulabhai Desai
Road, Mumbai 400026.
3 Ms. Shobha Shetty (Secretary)
Adult, Mumbai Inhabitant,
residing At Flat No.83 B
M/s New Sarnath Co-operative Housing Society
Ltd.
Having their address at 59B Bhulabhai Desai
Road, Mumbai 400026. … Plaintiffs
Versus
Aleya Chinmulgund
Flat No.14 B
M/s. New Sarnath CHSL
Society Ltd. Having their address at 59 B
Bhulabhai Desai Road, Mumbai. … Defendant
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N. M. No.1152 of 2020 .. 2 … Order
CORAM : HIS HONOUR JUDGE, R. D. DESHPANDE
: COURT ROOM NO. 61
DATE : 23.10.2024
Appearances: -
Adv. Mr. Anuj Narula for plaintiffs.
Adv. Indira Labde for defendant.
ORDER
(Dictated and pronounced in open Court)
This Notice of Motion is taken out by the defendant.
2. Heard her Adv. Indira Labde. She submitted that the
defendant received Show Cause Notice dated 21.01.2020
addressed by this Court calling upon her to show cause why the
order should not be passed to break open the lock of her flat and
to allow the plaintiff entry therein for carrying out repair works of
the building at the cost of the plaintiff. Such notice was directly
served upon her by attaching it to the outdoor grills on 27.01.2020
and there was no proper service upon her. No papers were
annexed to that notice.
3. She further argued that, on 31.01.2020 she appeared
through her advocate and came to know that there was an ex-
parte interim order dated 10.12.2019 passed against her. Plaintiffs
have misled the Court to secure their entry to her flat with an
intention to harass and endanger her peaceful life. No attempts
were made to make proper service upon her. An affidavit of service
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N. M. No.1152 of 2020 .. 3 … Order
filed by Mr. Rane dated 26.11.2019 categorically states that the
service was done only through Vichare Courier which was returned
with the report as “room found locked”. Thus, there was no proper
service.
4. She further argued that the joint affidavit of service
dated 05.12.2019 stating that on 3rd of December, 2019 they
visited flat of the defendant for service and that she did not open
the door after ringing the bell are false. Defendant denies the
same. There are two doors to the main entrance, but the affidavit
of service speaks about only one door and thus affidavits of service
filed by the deponents are false and afterthought.
5. She further argued that the Ld. Predecessor of this
Court was pleased to allow plaintiffs Notice of Motion
No.4483/2019, allowing them to carry out repairs in the presence
of Court Commissioner and the plaintiffs were heard ex-parte on
the basis of their frivolous affidavit of service. On all these grounds
and which are raised further in the Notice of Motion, she prayed
that ex-parte order passed by the Ld. Predecessor of this Court in
Notice of Motion No.4483/2019 may be set aside and it be heard
on merits. It is also prayed that the Court Commissioner’s Report
dated 15.01.2020 may be also be set aside.
6. Plaintiffs filed affidavit in reply and resisted Notice of
Motion. Their Adv. Mr. Anuj Narula during the course of arguments
filed Pursis at (Exh.8) and made submission that without prejudice
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N. M. No.1152 of 2020 .. 4 … Order
to the plaintiffs contention that Notice of Motion No.4483/2019
was duly served upon the defendant and that she purposely
avoided to attend the Court with a view to obstruct or delay the
passing of order, plaintiffs are ready to allow the defendant to
rehear the Notice of Motion No.4483/2019 on merits, provided
that the defendant does not oppose plaintiffs to file additional
affidavit setting out the current scenario and the requirement of
repairs at a later date.
7. Following Points arise for my determination and I
record my findings against each of them for the reasons given
below:-
Sr.
No. Points Findings
1 Whether Notice of Motion
No.4483/2019 deserves to be re-heard
on merits?
:: Yes.
2 Whether the report of the Court
Commissioner dated 15.01.2020
deserves to be set aside?
:: Does not survive.
3 What order? :: Notice of Motion
is partly allowed
as per final order.
REASONS
Point No.1: -
8. Adv. Indira Labde argued in support of the Notice of
Motion as discussed in the earlier part of this order. At the same
time, Adv. Mr. Anuj Narula by filing Pursis on record at (Exh.8)
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N. M. No.1152 of 2020 .. 5 … Order
made submission at bar that plaintiffs are ready to rehear Notice of
Motion No.4483/2019. The Only request he has made is that the
plaintiffs may be permitted to file their additional affidavit setting
out the current scenario.
9. In view of Pursis filed by plaintiffs on record at (Exh.8)
and the submission made at bar by their Adv. Mr. Anuj Narula,
there is no hurdle in setting aside Order passed by my Ld.
Predecessor in Notice of Motion No.4483/2019 dated 10.12.2019.
10. If opportunity is given to both the parties to file their
additional affidavits in support of their contentions and to
rehear/argue the matter then it would go to safeguard interest of
both the sides and it would meet the ends of justice. In the result, I
answer Point No.1 in the affirmative.
Point No. 2: -
11. In view of my affirmative finding to Point No.1, this
Point does not survive and calls for no reasoning. In the result, I
answer this Point accordingly.
Point No. 3: -
12. In view of my affirmative finding to Point No.1, Notice
of Motion deserves to be partly allowed. Hence, the following
order: -
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N. M. No.1152 of 2020 .. 6 … Order
ORDER
1. Notice of Motion is partly allowed.
2. Order passed by my Ld. Predecessor in Notice of Motion
No.4483/2019 dated 10.12.2019 is hereby quashed and set
aside.
3. Notice of Motion No.4483/2019 is restored to its original file
and it be heard on merits by giving an opportunity of filing
their additional affidavits to both the parties and to argue it
afresh.
4. In view of it, there is no need to pass any order regarding
the Court Commissioner’s Report dated 15.01.2020, since it
has become infructuous.
5. Accordingly, Notice of Motion No.1152/2020 stands
disposed off.
DATE: - 23.10.2024 (R. D. DESHPANDE)
JUDGE, CITY CIVIL COURT
& ADDL. SESSIONS JUDGE,
GR. MUMBAI.
Dictated on : 21.10.2024
Transcribed on : 21.10.2024 and 22.10.2024
Checked on : 23.10.2024
Signed on : 23.10.2024
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"CERTIFIED TO BE TRUE AND CORRECT COPY OF THE
ORIGINAL SIGNED JUDGMENT/ORDER"
DATE: 23.10.2024, AT 05.19 P. M. Mr. Siddhesh Shankar Shirke
STENOGRAPHER (GRADE-I)
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (with Court
no.) :
SHRI R. D. DESHPANDE
C.R.NO.61.
Date of pronouncement of
Judgment/order : 23.10.2024
Judgment/order signed by the P. O.
on : 23.10.2024
Judgment/order uploaded on : 23.10.2024
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