Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM NO.192118 in Suit no.251116
IN THE BOMBAY CITY CIVIL COURT AT GREATER MUMBAI
NOTICE OF MOTION NO.1921 OF 2018
in
L.C. SUIT NO.2511 OF 2016
CNR No. : MHCC010063362018
Mr. Noor Khan S/o. Gaffar Khan ]...Plaintiff.
Versus
Municipal Corporation of Greater Mumbai ]..Defendant.
Advocate Mr. R. L. Singh for the Plaintiff.
Advocate Ms.Patil for defendant.
CORAM : M.S. Deshpande, Judge
(Court Room no.5)
DATED : 28th June, 2018.
O R A L O R D E R
1. When the suit is fixed for crossexamination of the PW no.1, the
defendant corporation has taken out this notice of motion seeking to set
aside order dated 26/02/2018 passed on notice of motion no. 744 of
2018 and further to condone delay in taking out the present notice of
motion.
2. The plaintiff filed reply and opposed the application by
contending that the motion is not maintainable as earlier order dated
26/02/2018 was passed on merits and thus, the same cannot be
recalled. It is further contended that the defendant has not prayed for
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setting aside the order dated 10/03/2017 whereby the suit was directed
to be heard without written statement.
3. Heard respective advocates at length. The Ld. Advocate for
defendant corporation submitted that while dismissing the NM No. 744
of 2018 it was observed that the defendant corporation did not annexe
the written statement with motion. Therefore, it is necessary to recall
the said order and accept the written statement which is filed alongwith
the present motion. She further submitted that due to heavy work load
the written statement could not be filed in time and when it was
prepared and affirmed it was misplaced and could not be tendered in
time. Lastly, she submitted that the considering the nature of the suit
for declaration and mandatory injunction it is necessary to place on
record true facts by filing written statement.
4. On the other hand Ld. Advocate for the plaintiff submitted that
earlier motion was rejected on merits after hearing both the advocates
and therefore, the orders cannot be set aside. The defendant did not
challenge the said order and now this motion is not tenable. It would be
abuse of process of law.
5. On perusal of record it appears that the writ of summon was duly
served on the defendant on 15/11/2016 and the matter was adjourned
from time to time for filing written statement. Thereafter, on
10/03/2017 an order to proceed without written statement of
defendant was passed. Thereafter, nine dates i.e., from 03/04/2017 to
02/02/2018 were lapsed. The defendant did not file written statement
during the period April, 2017 to January, 2018. It took out NM no. 744
of 2018. After hearing both the advocates the same was dismissed by
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holding that the reasons putforth by the defendant corporation were not
sufficient to set aside the order of hearing without written statement.
Moreover, the defendant had not annexed the copy of written statement
alongwith the said motion and thus, the said motion was came to be
dismissed.
6. Considering the above said facts and circumstances, there is no
scope for review or recalling the order dated 26/02/2018. Therefore,
the following order is passed:
ORDER
1. The NM no. 1921 of 2018 is dismissed.
2. Parties to bear their own costs.
(M.S. Deshpande)
Adhoc Judge
City Civil Court
Directly typed on : 28.06.2018
Checked by PO : 29.06.2018
Signed by HHJ on : 30.06.2018
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
30.06.2018 at 2.45 p.m. Mrs. Rupali S.Bhor
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court
room no.)
SHRI M. S. Deshpande (Court
Room No.05)
Date of Pronouncement of
JUDGEMENT/ORDER
28.06.2018
JUDGEMENT/ORDER signed by
P.O. on
30.06.2018
JUDGEMENT/ORDER uploaded on 30.06.2018
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