Final Order 1

Order Details: Notice of Motion
Pdf Text: CNR No. MHCC01-003816-2019. 1 Notice of Motion No. 1453/2019
in L.C. Suit No. 1016/2009.
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
NOTICE OF MOTION NO. 1453 OF 2019.
IN
L.C. SUIT NO. 1016 OF 2009.
Maqbul Ahmed Khan. ..............................……. ….. PLAINTIFF
V/s.
MCGM+2. ......................………………………. …. DEFENDANTS
CORAM : SHRI. A.G. SANTANI.
(Court Room No.11).
DATED : 27th June, 2023.
APPEARANCES :
Mr. Ravindra Singh, Ld. Advocate for the Plaintiff.
Mr. Rajesh Singh, Ld. Advocate for Defendants Nos. 1 and 2.
Mrs. Smita Chavan, Ld. Advocate for Defendant No. 3/ MCGM.
*****
01. Defendant Nos.1 and 2 have taken out the Notice of Motion
(for the brevity ‘the NM’), for rejection of NM No.485/2019, filed by the
plaintiff, to vacate ad-interim Order of dtd. 12.05.2009 and for staying
hearing on all the interlocutory applications filed by the plaintiff in the
present suit. Perused this NM, accompanying affidavit of defendant No.
1 reply of the plaintiff and written arguments of the parties on this NM.
02. Considering the record, the point for determination, along -
with my finding and the reasons therefor, are as under :
Sr. No. POINTS FINDINGS
(i). Whether NM No. 485/2019, preferred by
the plaintiff, is liable to be rejected ? ….....…No.
(ii). What Order ? …..............…....................... …As per final Order
-: REASONS FOR THE FINDINGS :-
AS TO POINT NO. 1:
03. By this NM, defendant Nos.1 and 2 contended that after
-- 1 of 5 --
CNR No. MHCC01-003816-2019. 2 Notice of Motion No. 1453/2019
in L.C. Suit No. 1016/2009.
their filing of Suit No. 1014/2009, the plaintiff filed this suit. Moreover,
he secured the ad-interim relief, by suppressing material facts. However,
he neglected to register the NM and to serve upon it on the defendants
and therefore, they couldn't file their their reply. He undertook to place
the registered NM on the next date and it was so recorded in the Order
dtd. 28.11.2018. As such, the matter was adjourned on 04.12.2018, on
15.12.2018 and on 21.12.2018 for compliance and steps on his behalf.
On that day, his advocate informed this Court that the original Draft NM
and supporting affidavit were not traceable and it were unregistered. As
such, the plaintiff intended to file fresh NM. Therefore, this matter was
adjourned on 14.01.2019 and 21.01.2019. That day, the plaintiff again
informed that the original Draft NM and the affidavit were not traceable
and he expressed his intention to tender the reconstructed Draft NM on
record. Accordingly, on that day, without leave of the Court, he filed the
reconstructed Draft NM on record. As the Junior advocate for defendant
Nos. 1 and 2 attended the matter on that day, he couldn’t object the said
submission and the suit was adjourned for reply on 06.02.2019. On that
day, the plaintiff tendered the said NM after registration as 485 of 2019.
However, as he did not apply for permission to reconstruct the said NM,
defendant Nos. 1 and 2 could not object the same. Moreover, they could
not reply this NM. That apart, authenticity of its pleadings is doubtful
and therefore, it is liable to be rejected. In the written submissions, they
re-iterated their contentions, by relying upon the case of the Provident
Investment Co. Ltd. V. Hemlata Vijaysingh Ved, 2012 (2) ALL MR 640.
The plaintiff resisted this NM in view of his reply and accordingly, also
filed his written submissions in this NM.
04. Considering this record, at the outset, it is pertinent to note
that on 28.11.2018, the advocate for defendant informed that the NM,
-- 2 of 5 --
CNR No. MHCC01-003816-2019. 3 Notice of Motion No. 1453/2019
in L.C. Suit No. 1016/2009.
taken out by the plaintiff, was not tendered on record and therefore, the
plaintiff was directed to file the same. The record shows that initially, he
sought time and later, informed the Court that same was not traceable.
Finally, on 28.01.2019, he tendered the unregistered reconstructed draft
NM and the matter was adjourned on 06.02.2019 for filing of NM reply,
be extending time for registration of NM. Accordingly, on 06.02.2019,
he tendered the registered NM No. 485/2019, which was filed earlier in
Draft form. Certainly, in view of this record, the plaintiff never sought a
written permission to reconstruct the NM. Still, it is equally true that in
view of his submission that the said NM was 'not traceable', the copy of
reconstructed draft NM was 'taken on record' and the suit was fixed for
NM reply, by extending time for registration of the NM. Accordingly, he
filed NM No. 485/2019. Now, coming to the prejudice allegedly caused
to defendant Nos. 1 and 2, needless to say that as NM No. 485/2019 is
still pending for consideration, they are at liberty to raise their issues by
filing their reply on this NM. Surely, while replying the NM, they would
be in a position to assail its validity and legality. This way, there seems
no substance in the present NM, which is filed for rejection of NM No.
485/2019, as no written permission was sought by the plaintiff for filing
of the reconstruction copy of the said NM. However, considering the fact
that defendant Nos.1 and 2 couldn’t reply the said NM, I am of the view
that they must be given an opportunity to contest this NM on 'merits'. I
have gone through the ratio laid in the case of the Provident Investment
Co. Ltd., Cited Supra. With all respects, I am of the opinion that it is not
applicable to the present set of facts. Hence, I answered point No. 1 in
the negative and to answer to point No. 2, I pass the following Order :
-: O R D E R :-
(i). Notice of Motion No. 1453/2019 stands dismissed, leaving
defendant Nos.1 and 2 at liberty to file their detail reply in
-- 3 of 5 --
CNR No. MHCC01-003816-2019. 4 Notice of Motion No. 1453/2019
in L.C. Suit No. 1016/2009.
NM No. 485/2019.
(ii). Notice of Motion No. 1453/2019, accordingly, stands
disposed of.
{A.G. Santani}
Mumbai. Judge,
Dated : 27.06.2023. City Civil Court, Mumbai.
Dictated on : 27.06.2023.
Transcribed on : 30.06.2023.
Checked and Signed on : 03.07.2023.
-- 4 of 5 --
CNR No. MHCC01-003816-2019. 5 Notice of Motion No. 1453/2019
in L.C. Suit No. 1016/2009.
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
On 03.07.2023 at 1.26 p.m. Mrs. S.R.Mejari
Name of the Judge (with Court Room no.) HHJ Shri A.G.Santani
(Court Room No.11).
Date of Pronouncement of Judgment/Order 27.06.2023.
Judgment/Order signed by P.O. on 03.07.2023.
Judgment/Order uploaded on 03.07.2023.
-- 5 of 5 --