Final Order 1

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IN THE COURT OF SESSION AT MUMBAI
(Presided over by Kishore M.Jaiswal, Addl. Sessions Judge, Mumbai)
ORDER ON REVIEW PETITION NO. 133 OF 2019
CNR NO. MHCCO10052782019
IN
CIVIL SUIT NO.2442 OF 2017
CNR NO. MHCCO10108052017
1. Flavia Fernandes
of Mumbai Australian Resident of
Indian Origin, age: 85 years,
Occupation: Housewife, resident
of 1st floor "Matvia"
Plot No. 238/c, Central Avenue,
Chembur, Mumbai 400071
Presently living at C/o. Rita Joan
Gomes, 56A, Victoria Avenue,
Concord (W), NSW 2138,
Australia.
2. Mr. Antonio Fernandes
Indian Citizen holding Australin
Residency, Age 59 years,
Occupation: Business, residing at
101 Links Avenue, Concord (W),
NSW 2137, Australia having his
Business address at Casablanca
Beach Resorts, Wadi Candolim,
Bardez, North Goa 403515. ....Petitioners
(Orig. Defendants nos. 1 and 3)
VERSUS
1. John Peter Fernandes
Of Mukbai Indian Inhabitant,
Age 72 years, Occupation: Business,
Residing at 1st floor, "Matvia"
Plot No. 238/ C, Central Avenue, Chembur,
Mumbai400071. ...Respondent no.1
( Being the Orig.Plaintiff)
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2. Mrs. Rita Joan Gomez,
Australian Citizen of Indian orgin
Age 61 years, Occupation: Service
Residing at 56A, Victoria Avenue,
Concord (W), NSW 2138,
Australia having her address in
India at 2nd floor, "Matvia"
Plot No. 238/ C, Central Avenue, Chembur,
Mumbai400071.
3. Mr. Percy Fernandes,
Indian Citizen holding Australian
Residency, age 57 years,
Occupation: Business, Residing
at 9, Sanders Parade, Concord,
NSW 2137, Australia.
4. Dr. (Mrs.) Marie Lou Fernandes,
Of Mumbai, Indian Inhabitant,
Age: 51 years, Occupation: Police
Officer residing at 3rd floor, "Matvia"
Plot No. 238/C , Central Avenue, Chembur,
Mumbai 400071. ...Respondents no.2 to 4.
(Being the Orig.Defendants
nos 2, 4 and 5)
CORAM : HHJ KISHORE M.JAISWAL
ADDL.SESSIONS JUDGE
(COURT ROOM NO.58)
DATE : 18th JULY 2019
Name of the Advocates:
Adv.Amol Tembe for the Petitioners.
Adv. Denzil D'Mello for the respondent no.1.
ORAL ORDER
(Delivered on this 18th day of July, 2019)
This review petition is preferred by original
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defendants nos.1 and 3 in Suit No. 2442 of 2017. The respondent no.1
is the original plaintiff . I have carefully perused the review petition as
well as the reply filed by the original plaintiff which is on record as per
Exh.4.
2. Perused the documents. Heard learned advocate Shri
Tembe for the petitioners and learned advocate Shri Fernandes for the
respondents.
3. By virtue of this petition, the petitioners are seeking review
of the order dated 15th November,2018 passed in notice of motion no.
3923/17 and notice of motion no. 1749/18. I have perused the said
orders. The suit no. 2442/17 appears to have been filed on 30th
October, 2017 and the plaintiff therein is claiming that he is in physical
possession of entire first floor of the building named as "Matvia"
standing on land bearing plot no. 238/C of Suburban no. III of
Chembur, situated at Central Avenue Road, Chembur . This review
petition is opposed firstly on the ground that this petition is not filed
within the period of limitation. Accordingly I have perused the record.
It shows that the applicants have applied for certified copy on
21/11/2018 and the certified copy was ready on 17/5/2019. On the
same day i.e. on 17/5/2019 the certified copy was received by the
applicant. As such, in my considered opinion the period from
21/11/2018 to 17/5/2019 is to be excluded as the certified copy
application was pending. If that period is excluded then review petition
is well within limitation. Hence, I do not find any merits in the
argument advanced by learned advocate for the respondent that this
petition is barred by limitation.
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4. While considering this review petition, I have also gone
through the written statement dated 12th March, 2018 specifically
paragraphs no. 2(c) and paragraphs no.4 and 16. By virtue of the
written statement, it was pleaded that the defendants nos. 1 and 3 are
in actual physical possession of the entire remaining portion of the suit
premises. It is further pleaded that the defendants are in exclusive
possession of the entire first floor of the building named as "Matvia"
subject to priscilla room being occupied by priscilla as the gratuitous
licensee initially of the said deceased and the defendant no.1 and at
present of the defendant no.3. It is also pleaded that Commissioner be
appointed for the purpose of verifying the current possession of the
said premises. On perusal of the roznama dated 8/11/2017 it is found
that only defendant no.5 has made a settlement at bar that she had no
intention of dispossessing the plaintiff , his wife and their son. Thus,
the statement of only defendant no.5 was recorded. It is contended that
other defendants have not made any statement and therefore the
observations made in order of notice of motion no. 3932/17 that all the
defendants have made a statement needs to be corrected. Even
otherwise the said notice of motion was not decided on merits. As only
defendant no.5 has made a statement and therefore I find substance
that the notice of motion no. 3932/17 as well as notice of motion no.
1749/18 also needs to be heard on merits. It is further submitted that
the junior advocate has made a statement and therefore also the said
order needs to be corrected. Admittedly, both the NM’s were not
decided on merits. Considering over all facts and circumstances, the
order dated 15th November, 2018 passed below both the notice of
motions is reviewed and both the notice of motions be heard on merits.
Hence, I pass the following order.
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ORDER
Review petition no. 133/19 is allowed in terms of
prayer clause (a).
The notice of motion no. 3932/17 and notice of
motion no. 1749/18 are restored and it be heard on merits.
Review petition is disposed of accordingly.
(Kishore M. Jaiswal)
Addl. Sessions Judge,
City Civil & Sessions Court,
Date:18.07.2019 Gr.Mumbai
Dictated on: 18/07/2019
Transcribed on:19/07/2019
Signed on: 29/07/2019
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE: 29.7.2019 NAME OF STENOGRAPHER
Mrs. V.V.Mhatre
TIME:5.50p.m.
Name of the Judge ( With Court
room no.) Shri Kishore M. Jaiswal
(Court Room No.58)
Date of Pronouncement of
JUDGEMENT/ORDER
18.07.2019
JUDGMENT/ORDER signed by
P.O. on
29.07.2019
JUDGEMENT/ORDER uploaded on 29.07.2019
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