Final Order 1

Order Details: Notice of Motion
Pdf Text: :1: NM 1609/18 in L.C. Suit No.90/09
IN THE BOMBAY CITY CIVIL COURT, AT MUMBAI
NOTICE OF MOTION NO. 1609/18
IN
L.C. SUIT NO.90/2009
Vipenkumar Kartarchand Chopra (since deceased)
M/s New Punjab Restaurant & Bar
Near Jain Temple, L.B.S. Marg,
Bhandup (W), Mumbai – 400 078. Plaintiff.
V/s.
1. Mumbai Municipal Corporation
Having its address at B.M.C. HQ,
Mahapalika Marg, Opp. C.S.T.
Mumbai.
2. Smt. Dhakubai Vaktavarmal Jain
3. Mr. Yeshwant Vaktavarmal Jain
Nos. 2 & 3 both Hindus, Adults,
Residing at Nandvihar Building,
Near Prabhat Cinema, Station Road,
Bazaar Peth, Thane (W), Thane. Defendants.
Advocate Mr.R.V. Sipahimalani for Plaintiff.
Advocate Ms. Tondwalkar for Deft.No.1/BMC.
Advocate Mr. Wasim Ansari for Deft. Nos. 2 and 3.
CORAM : HER HONOUR JUDGE
MS. SUREKHA R. PATIL.
(C.R.NO.11)
DATE : 11th JULY, 2018
ORAL ORDER
The plaintiff has filed present notice of motion to grant
leave to register the original notice of motion of year 2008 and to
extend the adinterim order passed earlier on 22.12.2008 granted in the
-- 1 of 8 --
:2: NM 1609/18 in L.C. Suit No.90/09
draft notice of motion taken out in L.C. Suit No.90/09 till further order.
2. Plaintiff submits that he filed suit against
defendant/corporation thereby challenging the notice issued under
Section 354A of MMC Act. He has also taken out notice of motion for
grant of urgent relief, in which by order dated 22.12.2008 the Court has
been pleased to grant necessary adinterim reliefs. The Court passed
necessary order way back in the year 2008 itself no reply came to be
filed by the original defendants, meanwhile third party made an
application to get themselves to join as a party/defendant which came
to be allowed. Against the said order plaintiff preferred Writ Petition
before Hon'ble High Court. The said Writ Petition disposed of and third
parties were impleaded as a party defendant to the above suit.
3. The defendant filed a reply after few years. Meanwhile
original plaintiff suffered major health issues and was hospitalized on
several occasions and could not attend the above matter and he was
died in September 2017. The legal heirs of the deceased plaintiff took
out the chamber summons and it is brought on record. As interim order
dated 22.12.2008 was granted till filing of reply by defendant no.1 and
subsequently the defendant nos. 2 and 3 were also impleaded to the
suit. Due to the ill health of the original plaintiff and his subsequent
death the adinterim order was remained to be continued due to
oversight. On learning of the same, plaintiff immediately approached
before the Court for extension of earlier order. Hence, plaintiff prayed
to allow the NM in terms of prayer clause.
4. The defendant no.1 filed their reply, thereby strongly
objected present notice of motion filed by the plaintiff. Plaintiff has
-- 2 of 8 --
:3: NM 1609/18 in L.C. Suit No.90/09
taken out present notice of motion with prayer to extend the adinterim
order passed earlier on 22.12.2008 till further order. The plaintiff has
moved matter before Court Room No.8 of City civil court holding
charge of Court No.11 and copy of present draft notice of motion
alongwith affirmed copy of affidavit supporting NM tendered on record
of the Court on 16.04.2018. The copy of the said notice of motion was
served to the advocate of the defendant/corporation on same day.
Accordingly, incharge Court has granted leave to register the NM and
matter adjourned on 23.04.2018 for reply. Plaintiff again served notice
to the defendant that he is moving the notice of motion for hearing on
20.04.2018. In the notice of motion filed by the plaintiff there is no
prayer in respect of granting leave to register notice of motion of year
2008. In the copy served upon defendant no.1 on 16.04.2018 before in
charge Court no. 8, Plaintiff submitted that there is a prayer in that
notice of motion. Nothing has been pleaded by the plaintiff in affidavit
in support of notice of motion in respect of granting leave to register the
NM of year 2008, which itself shows that the plaintiff has added the
prayer in the NM without prior permission of the Court. After filing the
NM plaintiff has manipulated document which was filed on record,
which amounts to forgery.
5. Without explaining the delay, the plaintiff has filed present
notice of motion. Earlier order was discontinued in the year 2013.
Earlier also plaintiff has filed NM 1906/12 to continue earlier order
dated 22.12.2008, which was dismissed for default on 20.02.2013.
Thereafter plaintiff filed application below Exh. 9 for leave to register
original NM of the year 2008. The Court pleased to allow the said
application on 13.08.2013 subject to cost of Rs. 1,000/ but plaintiff
-- 3 of 8 --
:4: NM 1609/18 in L.C. Suit No.90/09
was till date failed to comply with the order below Exh. 9. Plaintiff has
not given any justified reason for non compliance of said order. After
lapse of 5 year without giving proper reason and suppressing material
fact from the Court, the plaintiff filed present NM, which is not
maintainable and deserves to be dismissed with costs.
6. Defendant no.3 filed their reply, thereby strongly objected
present notice of motion on the ground that plaintiff has filed fresh
notice of motion no. 1906/12 for interim and adinterim reliefs. The
same was dismissed for default. The plaintiff did not assail the said
order and therefore, the same has attained finality. The plaintiff
suppressed the said material fact from the Court in the present NM. The
unregistered NM of the year 2008 is the dead application, which cannot
be revived. The reason given by the plaintiff for filing NM is not
justified. Hence, the NM be dismissed with costs. The defendant no.3
has referred some citation in their reply but they have not produced the
copy of citation before the Court.
7. The plaintiff filed rejoinder and thereby denied the
contents of reply filed by both the defendants. Besides seeking leave of
the Court they registered the notice of motion. There is no any other
relief added by plaintiff as alleged in the reply. The father of plaintiff
was suffering from various illness therefore, the notice of motion no.
1906/12 was dismissed in default. Hence, he prayed to allow his notice
of motion.
8. Heard both the sides.
After perusal of record it is observed that on 22.12.2008
-- 4 of 8 --
:5: NM 1609/18 in L.C. Suit No.90/09
adinterim was granted to plaintiff till filing the reply of the defendants.
The EOC granted to the plaintiff, has discontinued on 28.03.2011. Even
the advocate for the plaintiff was present. Thereafter on next date at the
request of advocate for plaintiff again EOC was continued. Thereafter
again on 17.08.2011 EOC was not continued. The advocate for the
plaintiff was present on that day. Thereafter advocate for the plaintiff
only sought adjournment without praying for continuation of earlier
order. Thereafter again in between the earlier order continued on
10.10.2012. Thereafter on 04.05.2012 plaintiff filed draft notice of
motion dated 17.03.2012 alongwith affidavit dated 04.05.2012. The
leave was granted to register the said NM. On 12.12.2012 plaintiff
tendered original NM No.1906/12. The said NM filed for continuing ad
interim order. The date of the adinterim order is kept blank. On
20.02.2013 the said NM was dismissed for default. Thereafter on
03.04.2013 plaintiff filed application below Exh. 9 for grant permission
to leave to register draft notice of motion filed on 22.08.2012.
9. After perusal of entire roznama it seems that there is no
order passed on Exh. 9 on 13.08.2013. Till date there is no order passed
on Exh. 9. After perusal of roznama it seems that though the original
plaintiff was absent but advocate for the plaintiff used to remain present
before the Court and now the same advocate has filed the present NM.
It is the responsibility of advocate, when he is taking the vakalatnama of
the client and representing him before the Court to take necessary steps
for continuation of any earlier order passed by the Court but from the
roznama it seems that till filing the present NM no efforts has taken by
the plaintiff and his advocate to revive the adinterm order passed on
22.08.2018. Even at the time of argument the advocate for BMC argued
-- 5 of 8 --
:6: NM 1609/18 in L.C. Suit No.90/09
that the Court passed the order below Exh.9 on 13.08.2013 and
imposed cost of Rs.1000/ to plaintiff. At the time of argument the
advocate for the plaintiff is silent about this thing and even in his
rejoinder he has not mentioned anything whether the order below Exh.
9 is passed by the Court or not, it means he is also not aware about the
same thing. It is observed that in present notice of motion prayer of
granting leave is added afterwards in the blue ink. In affidavit in
support of notice of motion nothing is mentioned about to grant leave
to register the notice of motion.
10. At the time of argument the advocate for Defendant no.3
pointed out that the plaintiff has filed one more suit no. 1379/18
before this court. After going through the Para no.1 of the suit
no.1379/18 the plaintiff stated that earlier father of the plaintiff filed
suit no. 90/09 i.e. present suit challenging the validity of notice issued
under the provision of Section 354 of MMC Act, in which necessary
protection has been granted to the plaintiff initially, however,
subsequently in view of further event the said suit have become
infructuous. The plaintiff himself stated in the said plaint that the
present suit is infructuous. Hence, there is no question of reviving the
adinterim order passed on 22.08.2008. The plaintiff filed present NM
to grant leave to register draft NM filed in the year 2008, in which the
said adinterim was granted. But now the plaintiff filed fresh suit
regarding the same suit structure i.e. Suit No. 1379/08 and he himself
mentioned that in the said plaint para no.1 he himself submitted that
present suit is infructuous. Hence, there is no meaning to grant any
permission or to grant leave to register the NM filed in year 2008. In the
circumstances, I pass following order :
-- 6 of 8 --
:7: NM 1609/18 in L.C. Suit No.90/09
ORDER
NM 1609/18 stands rejected and accordingly disposed of.
(SUREKHA R.PATIL)
Judge,
City Civil Court,
Gr. Bombay.
Date: 11/07/2018.
Dictated on : 11/07/2018
Transcribed on : 12/07/2018
Signed on : 13/07/2018
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
16/07/2018 At 11.35 a.m. MRS. K. S. JADHAV
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.)
HHJ MS. S. R. PATIL
(C.R.NO.11)
Date of pronouncement of
Judgment/Order
11/07/2018
Judgment/Order signed by P.O. on 13/07/2018
Judgment/Order uploaded on 16/07/2018
-- 7 of 8 --
:8: NM 1609/18 in L.C. Suit No.90/09
-- 8 of 8 --