Final Order 1

Order Details: Notice of Motion
Pdf Text: Daily Status
IN THE COURT OF :COURT 08 ADDL SESSIONS JUDGE
Case No. :NOTICE OF MOTION/0102445/2019
Housila Prasad Badliram Jaiswar Vs 1. MCGM 2. Asstt. Engineer 3. MHADA
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.
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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
COURT 08 ADDL SESSIONS JUDGE
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