Final Order 1

Order Details: Notice of Motion
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IN THE BOMBAY CITY CIVIL COURT AT GREATER BOMBAY
Notice of Motion NO. 1644 of 2018
In
L.C.Suit No 556 of 2013
MHCC010052982018
Balaji Heart Hospital ..Plaintiffs
V/s
B.M.C & Ors ..Defendants
Advocate Mr. A.R.Pande for plaintiff
Advocate Mr.Mohit Jadhav for defendant No. 1 & 2
Advocate D.M.Gaonkar for defendant no.3
CORAM : HIS HONOUR JUDGE
SHRI. G.B.GURAO
DATE : 10th August 2018.
(Court Room No.06)
O R D E R
1 Defendant no. 3 has taken out this notice of motion to
decide the issue no.3 "Whether suit is bad for want of notice U/s 527 of
the MMC Act?" as preliminary issue and also to dismiss the suit for
want of notice U/s 527 of MMC Act.
2 According to defendant no. 3, this suit is for perpetual
injunction and other reliefs. The issues are framed on 25/3/2015. Issue
No. 3 is in respect of the maintainability of the suit in absence of notice
U/s 527 of the MMC Act. Further, the suit is barred by the limitation as
per the provisions of section 527 (b) of the MMC Act. Plaintiff has filed
the evidence affidavit on 17/11/2015, and stated that the notice U/s
527 of the MMC Act is not issued before institution of the suit. The
plaintiff has challenged the notice of demolition after six months of the
notice. Thus, plaintiff has approached in the court with unclean hands.
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Plaintiff had filed short cause suit no. 1944 of 2014 and plaintiff had
sought relief against defendant no. 1 to renew or extend or execute a
fresh agreement. Plaintiff has withdrawn the said suit. In that suit
plaintiff had filed notice of motion. This court dismissed the notice of
motion. Thereafter, plaintiff had filed appeal before Hon'ble High
Court. The said appeal is also dismissed by Hon'ble High Court. Thus
the agreement dated 4/8/2004, is terminated.
3 It is discovered by defendant no. 3 that one Mr. Chikne
had filed Public Interest Litigation against the plaintiff directing the
plaintiff to run maternity centre exclusively for economically weaker
section of the society. However, plaintiff is not conducting the
maternity centre and started Heart Special Diagnosis Center. Thus,
plaintiff has committed the contempt of Court. Accordingly, in view of
the above contention the suit is not maintainable and prayed to dismiss
the suit.
4 Defendant no. 3 again filed additional affidavit and
contended that plaintiff has no any locus to continue with the
possession of the suit premises. Plaintiff has no case on merit to
succeed therein. Plaintiff has suppressed the material facts. The writ
petition filed by the parties disposed of by Hon'ble High Court. Thus,
plaintiff is not entitled for any equitable relief.
5 Plaintiff and defendant no.1 and 2 did not file reply to the
said.
6 I have heard Shri D.M.Gaonkar Adv for defendant no. 3
Shri A.R.Pande Advocate for plaintiff and Shri Mohit Jadhav Advocate
for defendant no. 1 & 2
7 Shri D.M.Gaonkar Adv for defendant no. 3 has submitted
that before institution of the suit plaintiff has not given notice as
mandatory U/s 527 of MMC Act. Further, plaintiff did not challenge the
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demolition notice within 6 months therefore, suit is not maintainable.
According to him, plaintiff has suppressed the material facts about the
withdrawal of writ petition no. 2563/2015. Therefore, suit is not
maintainable. This Court has framed issues in respect of the
maintainability of the suit for want of notice U/s527 of MMC Act.
Hence, he prayed to dismiss the suit. In support of his contention he
relied on M/s Akash Impex V/s Municipal Corporation of Greater
Mumbai,2014 (4) ALL MR 747.
8 Shri A.R.Pande advocate for plaintiff has submitted that
plaintiff has filed his evidence affidavit. The suit is for cross
examination of plaintiffs witness. Therefore, the notice of motion is not
maintainable and prayed to dismiss the same.
9 Shri Mohit Jadhav advocate for defendant no. 1 & 2
submitted that suit may be disposed of finally by giving findings on all
issues.
10 In the present suit plaintiff has challenged the notice
issued by defendant no.1 & 2 U/s 351 of MMC Act dated 30/7/2012
and order passed there on dated 31/1/2013. In paragraph no.33 of
the plaint, plaintiff has pleaded that plaintiff is required to move the
Court immediately from the emergent action of the defendants,
requirement of the advance notice U/s 527 of MMC Act is
unconstitutional and therefore, plaintiff is not required to give any
advance notice to the defendants. The suit came to be registered and
thereafter writ of summons served to defendants. Defendants filed
written statement and on 23/3/2015, my Ld predecessor framed issues
at Exh.6. Defendants have raised contention that suit is bad for want of
notice U/s 527 of MMC Act. Accordingly issue no. 3 is framed in that
respect. Thereafter, on 18/11/2015, plaintiff filed evidence affidavit of
its witness and while the suit was for cross examination 0of plaintiff's
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witnesses, defendant no. 3 has moved this notice of motion.
11 Rule 2 of order 14 reads as:
Court to pronounce judgment on all issues (1)
Notwithstanding that a case may be disposed of on preliminary
issue, the Court shall, subject to the provisions of subrule (2),
pronounce judgment on all issues.
(2) Whether issues both of law and of fact arise in the same
suit, and the Court is of opinion that the case or any part thereof
may be disposed of on an issue of law only, it may try that issue
first if that issue relates to
a) the jurisdiction of the Court, or
b) a bar to the suit created by any law for the time being in
force, and for that purpose may, if it thinks fit, postpone the
settlement of the other issues until after that issue has been
determined, and may deal with the suit in accordance with the
decision on that issue.
12 Here in the present suit, already plaintiff witnesses has
filed his evidence affidavit. The suit is for cross examination of
plaintiffs witness therefore, both the issues i.e. issues of law and fact
can be decided finally. Hence in such a circumstances there is no
necessity to treat the issue no. 3 as a preliminary issue. In Akash
Impex V/s Municipal Corporation of Greater Mumbai 2014 (4) ALL
MR 747, Hon'ble High Court held that:
The mandate under Section 527 of the MMC Act is clear
and undeniable creating prohibition for the institution of
the civil suit without compliance of conditions precedents
stated therein. The civil suit cannot be entertained against
the MCGM or its officials for performing their duty in good
faith, unless the conditions precedents are complied with
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by the prospective plaintiff before the institution of the
Civil suit.
The waiver of presuit statutory notice is implied only in
such exceptional case where plaintiff may be required to
rush urgently with a civil suit to the Court pleading
extreme urgency to pray for injunction to protect his
residence/house or building likely to be demolished
highhandedly by the defendant. Considerations of hardship
to the plaintiff are irrelevant in the absence of waiver of
presuit statutory notice waiver may be express or implied.
But mere delay in raising objection as to the jurisdiction of
the Court would not justify an inference of waiver. It is
necessarily a question of inference to be drawn by Court
based on the established facts and circumstances as to
conduct the defendant before and after the institution of
the suit.
13 In view of the provisions of order 14 rule 2 and the ratio
laid down in the above rulings, I find that the issue no. 3 can be
decided alongwith other issues. Hence with the above observations, I
find that the notice of motion deserves to be dismissed. Therefore,
following order is passed:
ORDER
1 Notice of motion is dismissed.
2 No order as to costs.
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3 Notice of motion is disposed of accordingly.
(G.B.Gurao)
Judge,
City Civil Court, Gr. Bombay.
Dictated on : 10/08/2018
Typed on : 13/08/2018
Signed by HHJ. : 14/8/2018
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“ CERTIFIED TO BE TRUE AND CORRECT COPY OF THE
ORIGINAL SIGNED JUDGMENT/ORDER.”
14/8/2018 Mrs. S.D. Raje
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
(H.G.)
Name of the Judge (with Court
Room No.)
Shri. G.B.Gurao
(CR.No.06)
Date of Pronouncement of
JUDGEMENT/ORDER
10/8/2018
JUDGEMENT/ORDER signed by
P.O. on
14/8/2018
JUDGEMENT/ORDER uploaded
on
14/8/2018
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