Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 N/M. No.2440/19 (LCS No.1197/18)
MHCC010067112019
IN THE BOMBAY CITY CIVIL COURT AT GREATER MUMBAI
NOTICE OF MOTION No.2440 OF 2019
IN
LONG CAUSE SUIT No.1197/2018
Mr. Sudhir s/o. Kashinath More … Plaintiff
- Versus -
Municipal Corporation for
Greater Mumbai & 2 Ors. ... Defendants
A N D
Smt. Tunga Krishna Devadiga … Applicant
Appearance :-
Ms. Prerna Pagare, Advocate for plaintiff.
Mr. Om Suryavanshi, Advocate for defendants/M. C. G. M.
Mr. Gharat, Advocate for defendant No.4.
CORAM : S. H. SALUNKHE,
AD-HOC JUDGE CITY CIVIL COURT,
COURT ROOM NO.4.
DATED : 18/12/2023.
O R D E R
. Defendant No.4 taken out this Notice of Motion for recall of
the order dated 14/8/2018 allowing Notice of Motion for temporary
injunction whereby the defendant B.M.C. or anybody through it
temporarily restrained from acting upon impugned notice.
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2] It is contended by defendant No.4 that she is the landlord
of the premises to whom notice under Section 351 of The Mumbai
Municipal Corporation Act (in short the M. M. C. Act) has been issued.
She has been subsequently added as defendant as per order passed in
Chamber Summons No.1188/2019. The plaintiff could succeeded in
persuading the Court to pass temporary injunction in his favour as all
the requisite papers/arguments were not made available at the time of
deciding Notice of Motion. The temporary injunction order is affecting
her, therefore, it is necessary to recall the order of temporary injunction
dated 14/8/2018. No prejudice would be caused to the plaintiff if
Notice of Motion is reheard. On the other hand, irreparable harm or
injury would cause to defendant No.4 if the order of temporary
injunction is not recalled. On these grounds, defendant No.4 prayed for
recall of order dated 14/8/2018.
3] The plaintiff opposed Notice of Motion by filing reply. It is
contended that the plaintiff has challenged notice under Section 351 of
the M. M. C. Act and speaking order passed by defendant B. M. C. and
this Court pleased to grant temporary injunction after satisfaction and
on merit. The order dated 14/8/2018 is correct and should not be
recalled. Therefore, Notice of Motion be dismissed with costs.
4] Heard learned advocates for the parties. The plaintiff has
filed written arguments below exhibit-5.
5] Points for determination alongwith findings thereon for the
reasons are as under :-
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3 N/M. No.2440/19 (LCS No.1197/18)
Sr.
No.
P O I N T S F I N D I N G S
1) Does defendant No.4 has made out
case to set aside or recall order of
temporary injunction dated
14/8/2018 ? . . .
No.
2) What order ? . . . Notice of Motion is
dismissed.
- :: R E A S O N S ::-
AS TO BOTH POINTS :-
6] Learned advocate for defendant No.4 submitted that the
plaintiff has challenged notice under Section 351 of the M. M. C. Act
and defendant No.4 is owner of the targeted structure. He submitted
that in paragraph No.7 of the plaint the plaintiff himself pleaded that
defendant No.4 is owner of the suit premises. He further submitted that
the defendant No.4 was not initially joined as party to suit and she has
been impleaded as per order dated 2/3/2022 as defendant. He further
submitted that Notice of Motion for temporary injunction restraining
defendant B. M. C. was heard and came to be made absolute before
joining this defendant as a party to suit. The order of temporary
injunction is causing prejudice to defendant No.4 and no harm would
be caused to the plaintiff if Notice of Motion for temporary injunction is
heard afresh.
7] On the other hand, learned advocate for the plaintiff
contended that after hearing the parties at length this Court has pleased
to grant interim protection. It is further contended that defendant No.4
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had approached to the Hon'ble High Court by preferring Appeal
whereby challenged the order of temporary injunction dated 14/8/2018
however, the Hon'ble High Court was not inclined to entertain the said
proceeding as defendant No.4 was not party to suit and after
withdrawal of said proceeding the plaintiff approached this Court and
taken out Chamber Summons No.1188/2019 for impleading her as a
defendant and thereafter taken out present Notice of Motion, which is
completely misconceived, frivolous and not maintainable. It is settled
that once order has been passed by a competent Civil Court, it becomes
functuous officio and same cannot be recalled, except provided by of
The Code of Civil Procedure. On these grounds, the plaintiff prayed for
dismissal of Notice of Motion.
8] The plaintiff opposed Notice of Motion stating that after
passing order of temporary injunction dated 14/8/2018 this Court this
Court becomes functuous officio and order of temporary injunction
cannot be recalled. However as per Order-XXXIX Rule-4 of the C. P. C.
any order for injunction may be discharged, or varied or set aside by a
Court, on application made thereto by any party dissatisfied with such
order. Thus, as per Order-XXXIX Rule-4 of the C. P. C. injunction order
may be modified, discharged or set aside provided that requirements of
the provisio to Rule-4 of Order-XXXIX of the C. P. C. are satisfied. As per
the proviso to Rule-4 of Order XXXIX of the C. P. C. application for
discharging or setting aside injunction order is permissible only if the
application seeking temporary injunction or in the affidavit supporting
such application, a party had made false and misleading statement in
respect to a material particular and an injunction was granted without
notice to the opposite party. Second proviso to Order-XXXIX Rule-4 of
the C. P. C. lays down that where an order of injunction has been passed
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after giving to a party an opportunity of being heard, the order shall not
be discharged, varied or set aside on the application of that party except
where such discharge, variations or setting aside has been necessitated
by a change in the circumstances or unless the Court is satisfied that
order has caused hardship to that party.
9] Defendant No.4 is seeking discharge or recall of the order
granting temporary injunction dated 14/8/2018 on the ground that all
the papers and arguments were not produced before the Court and
injunction order is affecting him. However, defendant No.4 has not
stated which relevant documents were not produced before the Court
and how she is affecting by the order. There is no allegation that the
plaintiff in application for temporary injunction or affidavit supporting
such application made false or misleading statement in respect to a
material particular.
10] It is admitted that when temporary injunction order was
passed defendant No.4 was not party to suit. Learned advocate for
defendant No.4 submitted that notice of that Notice of Motion was not
given to defendant No.4 and, therefore, the order needs to be set aside.
However, as per the first proviso to Order-XXXIX Rule-4 of the C. P. C., if
the party has knowingly made false or misleading statement and order
of injunction was granted without notice to opposite party, the Court
can vacate the injunction. However, it is not case of the defendant No.4
that the plaintiff has knowingly made false or misleading statement in
Notice of Motion or affidavit supporting the Notice of Motion for
temporary injunction. The present Notice of Motion filed by defendant
No.4 does not satisfy the requirement of the Proviso to Order-XXXIX
Rule-4 of the C. P. C. Moreover, defendant No.4 has not brought on
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record to show that she has suffered any hardship or there is any
change in circumstance. Thus, the order of temporary injunction dated
14/8/2018 does not warrant vacation or setting aside. Accordingly, I
answer point No.1 in the negative and in answer to point No.2 pass
following order :-
O R D E R
Notice of Motion is dismissed.
Date : 18/12/2023. ( S. H. SALUNKHE )
Ad-hoc Judge City Civil Court,
Court Room No.4, Gr. Mumbai.
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED ORDER.”
29/12/2023 04:50 p.m. V. V. Kulkarni
NAME OF STENOGRAPHERUPLOAD DATE TIME
Name of the Judge (With Court
Room No.)
H. H. Judge Shri. S. H. Salunkhe,
Court Room No. 4.
Date of Pronouncement of ORDER 18/12/2023
ORDER Typed on 29/12/2023
ORDER signed by P. O. on 29/12/2023
ORDER uploaded on 29/12/2023
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