Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 N/M No.1339/2018 in L.C.Suit No.1549/2013
IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
NOTICE OF MOTION NO.1339 OF 2018
(C.N.R. NO.MHCC010042952018)
IN
L.C. SUIT NO. 1549 OF 2013
(C.N.R. NO.MHCC010018802013)
Smt. Sarla Krishnakumar Sharma, ]
age_____ years, an adult, Indian Inhabitant ]
of Mumbai, residing at structure situated ]
at Survey No.50, Hissa No.14(pt), ]
CTS No. 829(pt), Santnagar, ]
Near Sitladevi Temple, Safed Pool, ]
Kurla Andheri Road, Kurla (West), ]
Mumbai – 400 072. ]..Plaintiff.
V/s.
1 The Municipal Corporation of ]
Greater Mumbai, a body corporate ]
duly constituted under the provision of ]
B.M.C. Act 1888, Having their Head ]
Office at Mahapalika Bhavan, ]
Mahapalika Marg, Mumbai 400 001. ]..Defendant
Advocate Mr. B.P. Shukla for plaintiff.
Advocate Mrs. Hajare for BMC/defendant.
CORAM : HER HONOUR JUDGE
MS. S.P. PONKSHE.
(C.R.NO.11)
DATE : 2nd APRIL 2018
ORAL ORDER
This Notice of Motion has been taken out by the plaintiff
for setting aside the order dated 11.10.2017 by condoning the delay of
-- 1 of 6 --
2 N/M No.1339/2018 in L.C.Suit No.1549/2013
140 days and allowing the plaintiff to tender the original Notice of
Motion No.1077/2017 on record by restoring the same to its original
position.
2 The plaintiff has filed affidavit of Constituted Attorney in
support of notice of motion. It is averred that there was no
communication between the plaintiff and her advocate regarding the
date of the hearing of the notice of motion. The plaintiff's advocate in
the month of October 2017 at relevant time went to his native place.
Therefore, he could not attend the matter on 11.10.2017. The plaintiff
was also not aware about the date of the hearing of the notice of
motion. Therefore, the plaintiff could not attend the matter on
11.10.2017. The original Notice of Motion No.1077/2017 has already
been registered on 20.03.2017 and could not be tendered on
11.10.2017. Not tendering of original notice of motion was not
deliberate and intentional on the part of the plaintiff and her advocate
and which resulted in dismissal of the notice of motion.
3 It is further averred that the plaintiff and her advocate lost
the track of the matter and when the plaintiff went to her advocate's
office on 26.03.2018 asked about the progress of notice of motion.
When her advocate searched the matter on computer, he found out that
notice of motion was not tendered and therefore, the Court has
dismissed the same. There is delay of 140 days in taking out the
present notice of motion. The plaintiff has good case on merits. The
delay in taking out notice of motion is not intentional. There is genuine
reason for restoring the original notice of motion on record. Thus, in
the interest of justice, the plaintiff has prayed for allowing of notice of
motion.
-- 2 of 6 --
3 N/M No.1339/2018 in L.C.Suit No.1549/2013
4 The defendant has filed say and contended that the plaintiff
has taken out notice of motion at belated stage on 02.04.2018 and has
not given any bonafide reason for the same. The plaintiff has not
produced any photograph on record showing that structure is in
existence. Hence, prayed for dismissal of notice of motion.
5 Heard the learned advocate for the plaintiff and the learned
advocate for the defendant.
6 The following points arise for my determination. I have
recorded points alongwith the reasons as stated below:
Sr.
No.
POINTS FINDINGS
1 Whether the plaintiff has satisfied that
there was sufficient cause for her for non
production of registered notice of motion
no.1077/2017 before the Court ?
In the
Affirmative
2 Whether the plaintiff is entitled for
restoration of notice of motion
No1077/2017 and for producing the same
on record by condoning delay caused in
taking out present notice of motion ?
In the
Affirmative
3 What Order ? As per final Order
-- 3 of 6 --
4 N/M No.1339/2018 in L.C.Suit No.1549/2013
R E A S O N S
7 In view of affidavit in support of notice of motion, filed by
the plaintiff's Constituted Attorney, it discloses one reason that the
plaintiff's advocate went to his native place. Therefore, he could not
attend the matter on 11.10.2017. Further, she has stated one more
reason is that she was also not aware about the date of the hearing of
the notice of motion. Therefore, the plaintiff could not attend the
matter on 11.10.2017.
8 No doubt, it appears that the original Notice of Motion
was registered with No.1077/2017 on 20.03.2017, but the plaintiff
failed to produce it before the Court. It is further submitted by the
plaintiff that not tendering of original notice of motion was not
deliberate and intentional on the part of the plaintiff. The plaintiff has
stated that she has good case on merits and delay in taking out notice of
motion is also not intentional. It was occurred due to loss the tract of
the matter.
9 Thus, considering the averments in the affidavit, it reveals
that reasons stated by the plaintiff are genuine and reasonable to
accept. Further, if the plaintiff has good case on merits, then if this
notice of motion is not restored, it will cause irreparable loss and
prejudice to the plaintiff. But considering the delay caused in taking
out notice of motion, cost is necessary to impose upon the plaintiff
while allowing present notice of motion in the interest of justice. Thus,
notice of motion is to be allowed in the interest of justice by imposing
costs upon the plaintiff.
-- 4 of 6 --
5 N/M No.1339/2018 in L.C.Suit No.1549/2013
10 In the light of above discussion and findings as to points,
this notice of motion is to be made absolute in the interest of justice.
With this, I proceed to pass the following order:.
ORDER
1 Notice of Motion No. 1339 of 2018 is made absolute in terms of
prayer clause (a) subject to payment of costs of Rs.2,000/ payable by
the plaintiff to the defendant on or before next date.
2 On payment of costs, delay caused in taking out present notice of
motion is hereby condoned and original notice of motion No.1077/2017
be restored to its original stage.
3 On payment of costs, the plaintiff is allowed to tender registered
notice of motion No.1077/2017, on next date.
4 Notice of Motion No. 1339 of 2018 stands disposed of
accordingly.
(S. P. PONKSHE)
Judge,
City Civil Court,
Gr. Bombay.
Date: 02/04/2018.
Dictated on : 02/04/2018
Transcribed on : 02/04/2018
Signed on : 03/04/2018
-- 5 of 6 --
6 N/M No.1339/2018 in L.C.Suit No.1549/2013
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
04/04/2018 At 12.31 p.m. MRS. SUPRIYA S. PAWAR
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.)
HHJ MS. S. P. PONKSHE
(C.R.NO.11)
Date of pronouncement of
Judgment/Order
02/04/2018
Judgment/Order signed by P.O. on 03/04/2018
Judgment/Order uploaded on 04/04/2018
-- 6 of 6 --