Date: 18-09-2019
Business: Adv. Kango for the Plaintiff present.
Adv. Hasan Khan for Defendant-4 and 5 present.
Adv. Mr. Kandekar for Defendant no. 3 present.
Adv. Mr. Darshan Jain for State present.
Adv. Ms. Subhedar h/f Chandramore for BMC/Defendant no. 1 and 2 present.
Affidavit of service tendered by the Plaintiff. t.o.r.
Original registered N/M No. 2445/19 alongwith affidavit in support tendered by the Plaintiff. t.o.r.
Matter is adjd. to 13.12.2019 for reply to N/M.
Next Purpose: REPLY
Next Hearing Date: 13-12-2019
Date: 13-12-2019
Business: Adv. Avinash Kango for Plaintiff is present.
Adv. Chandramore for Defendant no.1and 2 is present. She seeks time time for tendering reply to NM 2445/19 O-Granted as a last chance.
Adv. Satamkar for Defendant no.3 is present. He seeks time time for tendering reply to NM 2445/19 O-Granted as a last chance.
Adv. Hasan Khan for defendant no. 4and 5 is present. He seeks time time for tendering reply to NM 2445/19 O-Granted as a last chance.
Matter is adjd. for NM reply to 17/01/2020.
Next Purpose: NM REPLYREJOINDER
Next Hearing Date: 17-01-2020
Date: 17-01-2020
Next Purpose: NM REPLYREJOINDER
Next Hearing Date: 16-03-2020
Date: 16-03-2020
Next Purpose: NM REPLYREJOINDER
Next Hearing Date: 01-12-2020
Date: 01-12-2020
Business: Adv.Mr.Avinash Kango for plaintiff present.
None present for defendant.
Matter is adjd. to 08.03.2021 for NM Hearing.
Next Purpose: NM REPLYREJOINDER
Next Hearing Date: 08-03-2021
Date: 08-03-2021
Business: Adv. Avinash for the plaintiff.
Adv. Mr. Pathak h/f Adv. Mr. Kandekar for the defendant No.3.
Adv. Jadhav for the defendants No.4 and 5.
Matter is adjd. to 20/04/2021 for NM hearing.
Next Purpose: NM FOR HEARING
Next Hearing Date: 20-04-2021
Date: 20-04-2021
Business: Due to Covid-19
Next Purpose: NM FOR HEARING
Next Hearing Date: 15-07-2021
Date: 15-07-2021
Business: Due to COVID-19 pandemic.
Next Purpose: NM FOR HEARING
Next Hearing Date: 02-09-2021
Date: 02-09-2021
Business: court is on leave
Next Purpose: NM FOR HEARING
Next Hearing Date: 26-11-2021
Date: 26-11-2021
Business: As Court is busy is in hearing argument in SU 1954/21 NM 2416/21 and precipe matters. Hence, Board is discharged.
Matter is adjd. to 28.01.2022 for NM hearing.
Next Purpose: NM FOR HEARING
Next Hearing Date: 28-01-2022
Date: 28-01-2022
Business: Due to SOP only urgent matters are taken up.
Matter is adjd. to 30.03.2022 for NM hearing.
Next Purpose: NM FOR HEARING
Next Hearing Date: 30-03-2022
Date: 30-03-2022
Business: None present for plaintiff.
Adv. Priyanka gavkar hf. Adv. Martina sakpal present for deff. no. 06.
Adv. Chandramore present for defendant no. 01 and 02/MCGM.
Adv. Pathak hf adv. Kandekar present for defendant 03/MHADA.
None present for defendant no. 04 and 05.
As plaintiff and his adv. are absent, Matter adjourned for nm hrg./order to 15/06/22.
Next Purpose: NM ORDERS
Next Hearing Date: 15-06-2022
Date: 15-06-2022
Business: Adv. Avinash Kango present for plaintiff.
Adv. Priyanka gavkar hf. Adv. kudalkar present for deff. no. 06.
Adv. Chandramore present for defendant 01 and 02/MCGM.
Adv. Ashwin sawalani present for the defendant no. 04 and 05.
Adv. Pathak alongwith adv. Kandekar present for defendant 03/MHADA.
Adv. Kudalkar present for defendant no. 06.
Heard arguments of ld. Adv. For plaintiff and ld adv. For defendant 01, 02, 03 and 06 on nm no. 2445/2019.
Matter adjourned for order on nm no. to 16/06/22 .
Next Purpose: NM ORDERS
Next Hearing Date: 16-06-2022
Date: 16-06-2022
Business: None present for plaintiff.
Adv. kudalkar present for defendant 04/STATE.
Adv. Chandramore present for defendant/MCGM.
Adv. Pathak hf adv. Kandekar present for defendant/MHADA.
Following order is passed on Notice of Motion No. 2445/2019.
ORDER
Plaintiff has taken out present notice of motion for recall of order dt. 17/06/19 in Notice of Motion No. 2759/2018 ( hereinafter above order is referred as impugned order) and thereafter to hear Notice of Motion No. 2759/2018 on merit.
Perused the Notice of Motion, affidavit in support of same and documents annexed therewith. Heard arguments of ld. Advocate for plaintiff and ld. Advocate for defendant no. 01, 02, 03 and 06.
In short it is the submission of ld. Advocate for plaintiff that while passing impugned order dt. 17/06/19 in Notice of Motion No. 2759/2018, court did not consider the additional affidavit of plaintiff dt. 27/18/2018. Moreover, the order dt. 17/06/2019 in nm no. 2759/2018 is non speaking. Therefore, the above order is apparently erroneous. Therefore, ld. Advocate for plaintiff submitted that, by using power U/s. 151 of CPC, Notice of Motion be made absolute.
On the other hand, ld. Advocates for defendant no. 01, 02, 03 and 06 argued that, in the affidavit in support of Notice of Motion, itself the plaintiff has admitted that, notice structure/suit structure was already demolished by defendant no. 01 and 02 prior to 17/06/2019. Therefore, this court in the impugned order dt. 17/06/2019 rightly observed that, the reliefs claimed in nm no. 2759/2018 became infructous. Therefore, the impugned order dt. 17/06/2019 in nm no. 2759/2018 is legal and proper. Moreover, plaintiff was having remedy of preferring appeal. As such this is not a fit case for exercise of power U/s. 151 of CPC. Hence, this Notice of Motion be dismissed.
From the matter on record it appears that, plaintiff had taken out Notice of Motion No. 2759/2018 for interim relief of temporary injunction restraining defendant no. 01 and 02 from enforcing the impugned notice dt. 24/02/2018 and impugned order dt. 19/04/2018 in respect of the suit premises/notice structure U/s. 351 of the MMC Act. From the roznama dt. 17/06/19, it appears that, on that date advocate for defendant no. 01, 02, 04 and 05 had submitted before court that, notice structure had been already demolished and father of plaintiff had also submitted that suit structure had already been demolished. It appears that, therefore, court hold that reliefs of temporary injunction claimed in Notice of Motion No. 2759/2018 became infructous and hence, disposed of nm no. 2759/2018. It is admitted fact that, notice structure/suit structure was already demolished prior to 17/06/2019. Therefore, ex facie it appears that, the reliefs claimed in Notice of Motion No. 2759/2018 were became infructous on 17/06/2019. From the roznama dt. 17/06/2019, ex facie it appears that, impugned order is speaking and considering the facts it was not necessary for the court to consider the additional affidavit of plaintiff, while passing the impugned order.
Considering the matter on record and above discussion, prima facie there appear no error apparent on the face of record in the order dt. 17/06/2019, and there appear no sufficient reason for review order dt. 17/06/2019. As such the present notice of motion does not come within the purview of review of the order. Moreover, plaintiff was having remedy of preferring appeal against the order dt. 17/06/2019 in nm no. 2759/2018. Therefore, this court find that, in the present matter it is not necessary for the ends of justice or to prevent abuse of the process of the court to exercise the power U/s. 151 of the Code of Civil Procedure. As such present notice of motion is devoid of merit. Therefore, the present notice of motion is liable to be dismissed. Hence, court proceeds to pass the following order.
ORDER
1) Notice of Motion No. 2445/2019 is dismissed.
2) Notice of Motion No. 2445/2019 is disposed off accordingly.
Authenticated copy of Roznama be given to both the parties if requested.
Matter is adjd. For no WS order to 14/07/22.
Nature Of Disposal: DISMISSED
Disposal Date: 16-06-2022