Final Order 1

Order Details: Notice of Motion
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IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
NOTICE OF MOTION NO.1291 OF 2018
(CNR NO. MH CC010041102018)
IN
S.C. SUIT NO.875 OF 2011
(CNR NO. MH CC010010932011)
Our Lady of Vailankanni and )
Perpetual Succour Cooperative )
Housing Society Ltd )..Plaintiff
V/s.
St. Michael's Church and others. )...Defendants
Appearance:
Mr. Jayesh Bhatt, Advocate for the Plaintiff.
Mr. Pradeep D. Gandhy, Advocate for the Defendant.
CORAM : HER HONOUR JUDGE
MS. S.P. PONKSHE.
(C.R.NO.12)
DATE : 26th JUNE, 2019.
ORAL ORDR
1 This Notice of Motion has been taken out by the defendant
no.6 to 13 for modification of order dated 26.09.2016 in Notice of
Motion No.957/2011. In support notice of motion defendants have
filed affidavit and produced orders passed in Draft Notice of Motion on
21.12.2012, order passed in Appeal From Order No. 176/2013 in Notice
of Motion No.957/2011 in Suit No.875/2011 with Civil Application
No.209/2013 on 13.03.2013, and order passed in Appeal from Order
Stamp No.10327/2017 with Civil Application No.481/2017 .
2. The plaintiff has filed reply to this motion and resisted the
motion in toto. It is contended that there is no merit in the motion and
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prayed for dismissal of this motion and denied averments in affidavit in
support of this motion in toto. The plaintiff has tendered order passed
on 06.02.2019 in respect of application for speaking to minutes of order
dated 03.07.2017.
3. Heard Ld Advocate for the defendant no.1 and 2 and
Advocate for the plaintiff. It appears that this motion has been taken
under Order39 Rule4 of Code of Civil Procedure for modification of
order passed in Notice of Motion No.957/2011, in view of amendment
carried out by the plaintiff in the suit plaint.
4. Perused record and proceeding of the Suit and orders
passed. It appears that during the pendency of the Suit the plaintiff had
filed chamber summons for amendment in the suit plaint and
accordingly amendment was allowed and the plaintiff has deleted
paragraph no.3 in the suit plaint and added paragraph no.3(a)
alongwith other amendments in the suit plaint.
5. Now by way of this motion in view of the amendment in
respect of description of the suit property, defendants are asking for
modification in the order. It appears that Notice of Motion
No.957/2011 was made absolute in terms of prayer clause (b). Perused
prayer clause (b) in Notice of Motion No. 957/2011. It seems that vide
said prayer the plaintiffs have asked for relief of temporary injunction
in respect of the “Suit Property” and accordingly the said prayer has
been allowed in respect of the “Suit Property”.
6. At the time of passing order in Notice of Motion
No.957/2011, the suit property was as mentioned in plaint paragraph
no.3. After passing order in Notice of Motion No.957/2011,
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amendment in the plaint has been carried out by the plaintiff by adding
paragraph no.3 (a), wherein the plaintiff has pleaded description of the
suit property by deleting earlier paragraph no.3. Plot admeasuring
5282.27 sq. meters with all other amenities shown by the defendant
no.3 in Lay Out Plan of 1993 has become the suit property in this suit.
7. Therefore, now the order passed in Notice of Motion
No.957/2011 has been continued during pendency of suit in respect of
the suit property as mentioned in plaint paragraph no.3(a). Thus the
word “Suit Property” mentioned in prayer clause (b) of Notice of
Motion No.957/2011 is referred to description of suit property
mentioned in suit plaint paragraph no.3 (a).
8. Thus above clarification is in respect of the word “Suit
Property” mentioned in prayer clause (b) of Notice of Motion
No.957/2011. In view of clarification with respect to the suit property
as property described in suit plaint paragraph no.3(a), there is no need
to modify the order dated 26.09.2016 passed in Notice of Motion
No.957/2011. With above clarification in respect of suit property, this
motion is to be disposed of. With this, I proceed to pass the following
order:
ORDER
Notice of Motion No.1291 of 2018 stands disposed of accordingly.
(S.P. PONKSHE)
Judge
City Civil Court,
Gr. Bombay
Dictated on : 26.06.2019
Transcribed on : 26.06.2019
Checked on : 27.06.2019
Signed on : 27.06.2019
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED ORDER.”
UPLOAD DATE TIME STENOGRAPHER NAME
28.06.2019 4.35 p.m. Ujwala J. Bhagat (StenographerIII)
Name of the Judge H.H.J. Ms. S.P. PONKSHE
(Court Room No.12)
Date of pronouncement of Order 26.06.2019
Order signed by P.O. on 27.06.2019
Order uploaded on 28.06.2019
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