Interim Order 2

Order Details: Notice of Motion
Pdf Text: 1 N/M. No.2136/18 (L.C.S. No.271/18)
MHCC010069102018
IN THE BOMBAY CITY CIVIL COURT AT GREATER MUMBAI
NOTICE OF MOTION No.2136 OF 2018
IN
LONG CAUSE SUIT No.271/2018
Brahmajyoti B-Wing Mirani
Tenants Association (Proposed)
& Ors. … Plaintiffs
- Versus -
Municipal Corporation for
Greater Mumbai ... Defendant
Appearance :-
Ms. Panday h/f. Mr. Saraogi, Advocates for plaintiffs.
Mrs. Waghmare, Advocate for defendant/M. C. G. M.
CORAM : S. H. SALUNKHE,
AD-HOC JUDGE CITY CIVIL COURT,
COURT ROOM NO.4.
DATED : 15/10/2024.
O R D E R
. The plaintiffs have taken out this Notice of Motion for
restoration of Chamber Summons No.291/2018 by setting aside order
dated 27/3/2018 dismissing in default Chamber Summons.
2] It is stated by the plaintiffs that suit has been filed to
challenge notice issued under Section 354 of The Mumbai Municipal
Corporation Act (in short the M. M. C. Act) and taken out Chamber
-- 1 of 4 --
2 N/M. No.2136/18 (L.C.S. No.271/18)
Summons No.291/2018 for amendment to incorporate subsequent
events. The plaintiffs have appeared before this Court on 27/3/2018
and matter adjourned to 8/6/2018. In the normal course, none of the
advocates took out printout of Roznama when matter was adjourned
without hearing and earlier order is continued. Then, on 25/5/2018
during the vacations the plaintiffs have taken matter on board. In the
Roznama dated 27/3/2018 it is mentioned that Chamber Summons
stands dismissed and in operative order it has been mentioned as
Chamber Summons kept for hearing. Therefore, due to said confusion
the plaintiffs have took out present Notice of Motion.
3] It is further stated that in fact, on 27/3/2018 advocate
Narvekar on behalf of plaintiffs was present however, just before a
minute matter was called out. She went out of the Court to look for the
clerk the matter was adjourned. She immediately mentioned matter and
ad-interim came to be continued but at that time, she was unaware
about order of dismissal of Chamber Summons. On 24/5/2018 when
printout of Roznama was taken out said order came to notice of the
plaintiffs and, accordingly, Notice of Motion is taken out.
4] Mr. Bhupendra Thakkar, Chairman of the plaintiffs filed an
affidavit in support of Notice of Motion on 1/6/2018. Mr. Bandekar
Sub-Engineer of defendant B. M. C. filed reply affidavit.
5] Defendant B. M. C. opposed Notice of Motion stating that
the reason mentioned in the Notice of Motion is not satisfactory. It is
duty of the plaintiffs to appear before the Court as and when matter is
called out. Hence Notice of Motion deserves to be dismissed.
6] Perused record and proceedings. Heard parties.
-- 2 of 4 --
3 N/M. No.2136/18 (L.C.S. No.271/18)
7] Present Notice of Motion has been taken out for restoration
of Chamber Summons which came to be dismissed for default on
27/3/2018 as none present for plaintiffs. It is contention of the
plaintiffs that on 27/3/2018 just before calling matter advocate Mrs.
Narvekar had gone out of the Court. Therefore, the order of dismissal of
Chamber Summons was not known to advocate. It appears that on
25/5/2018 the plaintiffs taken matter on board as the B. M. C. issued
notice dated 22/5/2018. It appears that Notice of Motion has been
presented on 11/6/2018. As per the provisions of Article-122 of The
Limitation Act the application for setting aside order dismissing suit or
appeal or application is to be filed within 30 days. The present
application has been filed after the period of limitation. According to
the plaintiffs, the order of dismissal of Notice of Motion came to
knowledge on 24/5/2018.
8] It is contention of the plaintiffs that before a minute of
calling matter being called advocate went out of the Court and,
therefore, Chamber Summons came to be dismissed. It is well settled
that the Court should take liberal approach while setting aside order
dismissing suit or application for default and decide matter on merit.
The reason assigned by the plaintiffs appear to be just and satisfactory
hence in order to decide Chamber Summons on merit, it would be just
and proper to restore Chamber Summons No.291/2018 by setting aside
order dated 27/3/2018 dismissing Chamber Summons in default.
Hence the order :-
-- 3 of 4 --
4 N/M. No.2136/18 (L.C.S. No.271/18)
O R D E R
1] Notice of Motion is hereby allowed.
2] The order dated 27/3/2018 dismissing in default Chamber
Summons No.291/2018 is set aside.
3] Chamber Summons be restored to its original number.
Date : 15/10/2024. ( 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.”
07/11/2024 11:55 a.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 15/10/2024
ORDER Typed on 04/11/2024
ORDER signed by P. O. on 06/11/2024
ORDER uploaded on 07/11/2024
-- 4 of 4 --