Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM 2337-19 in Suit No. 1493-19
CNR NO.MHCC0100645019
IN THE COURT OF CITY CIVIL FOR GREATER BOMBAY
AT BOMBAY
NOTICE OF MOTION NO. 2337 OF 2019
IN
L.C. SUIT NO. 1493 OF 2019
Shri. Saad Abdul Qayyum Gazdhar …...Plaintiff
Versus
Exec. Enginner (B & F) 'A' Ward & Anr. .... Defendants
Coram : Sanjay N. Yadav, Judge
(Court Room no. 05)
Date : 06th July, 2019.
Appearance:
Ld. Adv. Mr. Hardik Desai for the plaintiff.
Ld. Adv. Smt. Tondwalkar for defendant/MCGM.
ORDER
1. Heard Learned Advocate for the plaintiff and Learned Advocate
for defendant corporation.
2. The plaintiff was issued notice dated 08.02.2019 under Section
351 of the M.M.C. Act and the order 15.06.2019 was passed calling
upon the plaintiff to demolish the suit structure. It is the contention of
the plaintiff that the plaintiff had replied the notice on 18.02.2019. The
plaintiff after receiving the order dated 15.06.2019, traced documents
to prove this case therefore again replied on 20.06.2019 to the
corporation.
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2 NM 2337-19 in Suit No. 1493-19
3. The plaintiff by this notice of motion seeks temporary injunction
restraining the defendant corporation from demolishing the suit
structure.
The Learned Advocate for the plaintiff argued that the building
plan annexed at page no. 48A alongwith plaint which was not
submitted by the plaintiff alongwith the reply to the notice under
Section 351 of the MMC Act. It was subsequently submitted to the
corporation on 20.06.2019 the same needs to be considered. It is
contended that if the plan submitted, if considered by corporation
would prove the contention of the plaintiff.
4. The Learned Advocate for defendant corporation submitted that
the plaintiff is not entitle to any relief prayed for.
5. Admittedly, the corporation is the competent authority which was
to consider the reply and document after issuance of notice under
Section 351 of the MMC Act. It is also admitted fact that, this Court can
not assume powers of the corporation to consider the documents to
justify the alleged unauthorized construction.
It is also trite of law that a party to a proceeding should be
permitted to lead best possible evidence to prove its case. The plaintiff
had come into possession of the plan after the reply to the notice dated
18.02.2019 and the order dated 15.06.2019.
In the interest of justice, plaintiff needs to be given a fresh
opportunity of being heard and should be permitted to tender all the
relevant documents which have come to his notice after the reply dated
18.02.2019.
In circumstances the corporation needs to be directed to consider
the reply of the plaintiff a fresh and pass orders accordingly.
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3 NM 2337-19 in Suit No. 1493-19
In the result, following order is passed.
ORDER
1. The defendant corporation to consider the reply dated 20.06.2019
as reply to the notice dated 08.02.2019 under Section 351 of the
M.M.C. Act a fresh and pass speaking order.
2. The plaintiff to approach the corporation within two weeks from the
date of order and the corporation to hear and pass speaking orders
within three weeks thereafter.
3. In case of adverse orders against the plaintiff, no coercive action
should be taken out against the plaintiff for 10 days from the date of
order.
4. In the light of above directions Notice of Motion and Suit stands
disposed off.
(Sanjay N. Yadav)
Judge,
Date : 06.07.2019 City Civil Court, Mumbai.
Dictated & directly typed on dias computer on : 06.07.2019
Checked by HHJ on : 06.07.2019
Signed by HHJ on : 06.07.2019
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4 NM 2337-19 in Suit No. 1493-19
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE AND TIME : 06.07.2019 at 5.41 p.m.
NAME OF STENOGRAPHER : Mrs. K.S.Bhosale
Name of the Judge (With Court
Room no.)
HHJ Shri. Sanjay N. Yadav
C.R. no. 05
Date of Pronouncement of
JUDGMENT/ORDER
06.07.2019
JUDGMENT/ORDER signed by
P.O. on
06.07.2019
JUDGMENT/ORDER uploaded
on
06.07.2019
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