Interim Order 1

Order Details: Order below exhibit
Pdf Text: 1 Order below Exh.3 in SU No.22122019
MHCC010056582019
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
ORDER BELOW EXH.03
IN
SUIT NO.2212 OF 2019
Shri M. H. Patel ] ...Plaintiff
Versus
The State of Maharashtra & Anr. ]…Defendants
Appearance:
Plaintiff inperson.
Ld. Advocate Mr. Kudalkar defendant No.1.
CORAM : K.P. KSHIRSAGAR
JUDGE, (C.R.NO.08)
DATE : 13/03/2023
ORAL ORDER
1. Plaintiff has taken out present application for holding that
appearance of defendant No.1 through APP in absence of any specific
Order/Power of Attorney/Resolution, is contrary to Order III and XXVII
of Civil Procedure Code and therefore it is illegal, for holding that
appearance of defendant No.2 through Executive Engineer Mr.Arun
Nirbhawane without Power of Attorney, is contrary to the Order III and
XXVII of CPC hence it is illegal, for holding that V.P. singed by
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2 Order below Exh.3 in SU No.22122019
Executive Engineer without Power of Attorney is illegal, for dismissing
Notice of Motion and for passing decree as prayed in the suit.
2. Perused the application and record.
3. Heard arguments advanced by plaintiff inperson and Ld.
Advocate for defendant No.1. As the defendant No.2 was absent, he
could not be heard. Court has gone through written arguments of
plaintiff filed at Exh.4 and further submission of the plaintiff at Exh.5.
4. From the matter on record, it appears that, the defendant
No.1 is the State and defendant No.2 is undertaking of the State. As per
Order XXVII Rule 4 of CPC, Government Pleader in the Court is Agent of
the Government for the purpose of receiving processes against the
Government issued by such Court. Therefore, the Government Pleader
or the Additional Government Pleader being Recognized Agent of the
Government does not require specific Order/Power of Attorney or
Resolution for making appearance on behalf of State. Therefore, there
appear no substance in the contention of plaintiff that appearance of
defendant No.1, State through APP in absence of any specific
Order/Power of Attorney/Resolution is contrary to Order III and Order
XXVII and hence illegal. Moreover, admittedly, Executive Engineer of
defendant No.2 as an Authorized Representative of defendant No.2 has
appointed Advocate Kiranraj S. Khedekar to appear and act for
defendant No.2. Vakalatnama executed by Executive Engineer of
defendant No.2 in favour of Advocate is in writing and signed by
Executive Engineer. The question of the authority of the Executive
Engineer to appoint the Advocate is a triable issue. Moreover, there
appear no substance in the contention of plaintiff that in the absence of
any Power of Attorney in favour of Executive Engineer Mr.Arun
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Nirbhawane, appearance of defendant No.2 is contrary to Order III and
XXVII of CPC and V.P. singed by Executive Engineer without Power of
Attorney is illegal.
5. Defendant No.2 has taken out Notice of Motion
No.4532/2022 for rejection of plaint. The question whether above
notice of motion deserves to be allowed or it should be dismissed will
be considered at the time of hearing and deciding Notice of Motion
No.4532/2022. Moreover, considering the fact that Notice of Motion
No.4532/2022 taken out by defendant No.2 under Order VII Rule 11 of
CPC is pending, Court cannot proceed with the trial of the suit. As both
defendants are appearing, no question arise for passing exparte
judgment against defendants. Therefore, prayer of the plaintiff to
decree the suit without adjudication of Notice of Motion No.4532/2022
is also not tenable. Application is devoid of merit. The facts of
judgments cited in the application and in the written arguments and
further submission are in the humble opinion of this Court are different
from the facts of the present case and therefore, judgments relied by the
plaintiff are not helpful to the plaintiff in present case.
6. Considering the matter on record and above discussion,
Court found that application Exh.03 is devoid of merit. Moreover,
present simplicitor application which is not supported by solemn
affirmation of plaintiff is not in accordance with the Rules of Bombay
City Civil Court Rules, 1948. As such simplicitor application as filed, is
not maintainable. Therefore, present application is liable to be
dismissed. Hence, Court proceeds to pass following order:
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ORDER
1. Application (Exh.03) is dismissed.
2. Application (Exh.03) is disposed off accordingly.
Date :13.03.2023. (Shri. K.P. Kshirsagar)
Judge
City Civil Court,
Gr. Mumbai.
Dictated on :13.03.2023
Typed on :13.03.2023
Signed on :14.03.2023
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5 Order below Exh.3 in SU No.22122019
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
18.03.2023 at 10.50 a.m. (Mrs.K.S.Bhosale)
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court room
no.)
SHRI K.P. Kshirsagar (Court Room
No.08)
Date of Pronouncement of
JUDGMENT/ORDER
13.03.2023
JUDGMENT/ORDER signed by P.O.
on
14.03.2023
JUDGMENT/ORDER uploaded on 18.03.2023
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