Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM no.1943-18 in L.C.SUIT no.2276-11
IN THE CITY CIVIL COURT FOR GREATER BOMBAY
AT BOMBAY.
NOTICE OF MOTION NO. 1943 OF 2018
(CNR no. MHCC010064122018)
IN
L.C. SUIT NO. 2276 OF 2011
(CNR no. MHCC010030122011)
Bikram Mohansing Butola ]..Plaintiff
Versus
Municipal Corporation of Gr. Mumbai & 3 ors. ]... Defendants
Coram : M.S. Deshpande, Judge
(Court Room no. 05)
Date : 05th December, 2018.
Mr. Umesh Shetty i/b M/s. Flavia Legal, advocate for plaintiff.
Ms. Deepali Patil, advocate for defendants.
ORDER
1. The plaintiff has taken out this motion seeking condonation
of delay of 813 days caused in filing the motion and further to set aside
the order dated 11.01.2016 and restore the L. C. Suit no. 2276 of 2011.
2. The learned advocate for the plaintiff submitted that
earlier on 12.09.2014, the Notice of Motion no. 2544 of 2011 was
partly allowed. However, the directions given therein could not be
complied with. The earlier advocate representing the plaintiff did not
clarify the compliance required to be done. On 11.01.2016, both the
plaintiff and the said advocate failed to attend the hearing of the suit
-- 1 of 4 --
2 NM no.1943-18 in L.C.SUIT no.2276-11
and therefore, it was dismissed. In the meantime the officers of the
defendant, in the absence of plaintiff demolished portion of notice
structure, when he was out of station. Further the plaintiff was
incorrectly advised by the former advocate not to restore the suit. The
plaintiff was under bona fide impression that the impugned notice had
become infructuous and same would not be implemented further.
3. However, the defendants again visited the suit site for
demolition of the notice structure. The plaintiff hurriedly filed a fresh
suit, however could not get adinterim protection either from the City
Civil Court or the Hon'ble High Court and ultimately withdrew the said
suit with liberty to move a motion for restoration of earlier suit.
According to plaintiff, under such incorrect advise and hurry, delay
caused to move this motion should be condoned.
4. The defendant did not file reply in spite of granting
sufficient opportunity. Heard, both the learned advocates at length. The
learned advocate for the defendant strongly objected to grant motion by
contending that the plaintiff was sleeping over his rights and can not
held responsible his advocate for dismissal of the suit.
5. Considering the aforesaid facts and circumstance, it is
necessary to hear the suit on merits, and that too, when the plaintiff has
submitted that the notice structure which was regularized earlier by the
defendant in 1979 is noticed to be unauthorized. The same requires to
be decided on merits. Therefore, the suit is required to be restored by
condoning the delay in order to avoid multiplicity of proceedings. The
prejudice which the defendant may suffer can be compensated in terms
-- 2 of 4 --
3 NM no.1943-18 in L.C.SUIT no.2276-11
of costs. Thus, the following order is passed:
ORDER
1. The Notice of Motion no. 1943 of 2018 is made absolute in terms
of prayer clause (a) and (b) subject to payment of costs
Rs.10,000/ to the defendant corporation to be paid / deposited
on or before 19.12.2018.
2. On compliance of aforesaid order within time stipulated the suit
no. 2276 of 2011 will be restored.
3. Liberty to mention the matter in case of any coercive steps are
taken against the notice structure.
sd/-
(Dr. M. S. Deshpande)
Judge,
Date : 05.12.2018 City Civil Court, Mumbai.
Directly dictated & typed on dias computer : 05.12.2018
Checked by HHJ on : 06.12.2018
Signed by HHJ on : 06.12.2018
-- 3 of 4 --
4 NM no.1943-18 in L.C.SUIT no.2276-11
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE AND TIME : 06.12.2018 at 1.20 p.m.
NAME OF STENOGRAPHER : Mrs. Gayatri P. Acharekar
Name of the Judge (With Court
Room no.)
HHJ Shri. M. S. Deshpande
C.R. no.05
Date of Pronouncement of
JUDGMENT/ORDER
05/12/2018
JUDGMENT/ORDER signed by
P.O. on
06/12/2018
JUDGMENT/ORDER uploaded
on
06/12/2018
-- 4 of 4 --