Order 1

Order Details: Notice of Motion
Pdf Text: - 1 - N/m 1939/18 in 1407/15
IN THE BOMBAY CITY CIVIL COURT, AT MUMBAI
NOTICE OF MOTION NO. 1939 OF 2018
IN
L.C. SUIT NO. 1407 OF 2015
Mrs. Sunithi Suryakanth Rao .. Plaintiff
Versus
The Municipal Corporation of Gr. Mumbai .. Defendants.
CORAM : HIS HONOUR JUDGE
SHRI K.P.NANDEDKAR
(C.R.NO.11)
DATE : 24th September, 2018
Mr. Upadhyay, Ld. adv. for the plaintiff.
Mrs. Tondvalkar, Ld. adv. for defendant/BMC
O R D E R
1. This N/m is moved by plaintiff for restoration of draft N/m
which is dismissed in default by order of the Court dated 12.04.2017.
As mentioned in the affidavit filed in support of motion, it is contended
that draft N/m was filed by plaintiff in Suit No. 1407/2015 for
challenging notice under sec. 354 of MMC Act issued by defendant. It
is alleged that said notice was issued by defendant at the behest of
landlord and plaintiff is tenant in suit property. It is further mentioned
in affidavit that no written assurance is given by landlord or BMC or
any other person to allot alternate accommodation for suit premises to
plaintiff or to other tenants from Pravin Kunj and landlord is
obstructing plaintiff and other tenants. Therefore N/m was moved by
plaintiff because officers of BMC started threatening tenants from suit
premises to get disconnected electricity meter. Further plaintiff is old
age citizen of 68 years and her N/m is dismissed in default. If said
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N/m will not be registered, plaintiff will suffer from loss because on
10.05.2018 officers of BMC came to suit premises and threatened that
electricity connection and water connection of plaintiff will be
disconnected. Said fact was informed by plaintiff to her advocate and
thereafter she came to know that draft N/m is dismissed in default on
12.04.2017. Plaintiff was not aware about dismissal order and she was
not intentionally absent on the date of the dismissal order. It is further
mentioned in affidavit that no prejudice will be caused to the defendant
if N/m is restored and opportunity should be given to the plaintiff of
being heard on merits. Hence plaintiff has prayed to allow this N/m.
2. Defendant officer Jr. Engineer Pooja Morkal has filed
affidavit in reply and resisted the N/m contending that in the dismissal
order dated 12.04.2017 the Court has specifically observed that since
last so many dates plaintiff and her advocate were absent and it is
alleged that plaintiff was dormant for more than one year in the matter
and when officers of defendant were going to take further action, copy
of that N/m is served upon defendant on 16.05.2018. It is alleged that
plaintiff had not bothered to attend Court for hearing of N/m. Hence
N/m came to be dismissed in default and same cannot be restored
because dismissed N/m was unregistered. Hence defendant has prayed
to dismiss N/m.
3. I have heard plaintiff's adv. Mr. Upadhayay and Mrs.
Tondvalkar, adv. for defendant/BMC. On perusal of this N/m it is
noticed that my learned predecessor has passed interim order and
directed BMC not to disconnect electricity and water supply of suit
premises till final reply by BMC to N/m. As such my learned
predecessor has granted interim reliefs restraining officers of BMC from
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disconnecting water and electricity connection of suit premises.
4. In affidavit filed in support of N/m it is contended that
plaintiff was not intentionally absent on 12.04.2017 when N/m came to
be dismissed in default. It is further contended that no prejudice will be
caused to the defendant if draft N/m will be decided on merits. As such
from contentions raised in affidavit it becomes clear that plaintiff is
ready for decision of N/m on merits which is dismissed in default.
Hence I find that no prejudice will be caused to defendant if draft N/m
which came to be dismissed in default will be decided on merit.
Further as mentioned in affidavit plaintiff's age is 68 years and hence no
prejudice will be caused to defendant if fair opportunity will be given to
senior citizen for hearing of draft N/m on merits. However it becomes
necessary that plaintiff should be directed to deposit cost amount of Rs.
1000/ for restoration of dismissed draft N/m. Hence I proceed to pass
following order.
O R D E R
1. N/m No. 1939/2018 is made absolute.
2. Draft N/m be restored and interim relief granted by my
learned predecessor on 16.05.2018 is continued subject to
condition that plaintiff should deposit cost amount of Rs.
1000/ in the Court within 8 days from today.
(K.P.Nandedkar)
Judge,
City Civil Court,
24/09/2018 Gr.Bombay
Dictated on : 24.09.2018
Transcribed on: 25.09.2018
Signed by HHJ on: 26.09.2018
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGEMENT/ORDER”
UPLOAD DATE TIME NAME OF STENOGRAPHER
26.09.2018 04.15PM Y.S. Patil (H.G.)
Name of the Judge HHJ Shri K.P.Nandedkar (CR No.11)
Date of Pronouncement of Judgment/Order. 24/09/2018
Judgment/order signed by P.O on 26/09/2018
Judgment/order uploaded on 26/09/2018
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