Final Order 1

Order Details: Notice of Motion
Pdf Text: NM No.2341/2018 S.C. Suit No.1836/2015(Disp.of)
CNR No. MHCC010075942018
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO. 2341 OF 2018
IN
S.C. SUIT NO. 1836 OF 2015 (DISP.OF)
1. Ansari Mohd Tahir Mohd Sadique )
Age 64 years, Occ business, residing at )
Lambi Cement Chawl, Byculla Station Road,)
Room No.78, Mumbai 400 011. )
2. Sher Nizamuddin Khan )
Age 38 years, OccBusiness, residing at )
Lambi Cement Chawl, Byculla Station Road,)
Room No.2, Mumbai 400 011. )
3. Mohd. Shafique Tufail Ahmed Ansari )
Age 56 years, Occ Business, )
residing at Lambi Cement Chawl, )
Byculla Station Road, Room No.123, )
Mumbai 400 011. )
4. Abdul Rahim Abdul Raheman Ansari )
Age 61 years Occ Business, )
residing at Lambi Cement Chawl, )
Byculla Station Road Room No.24, )
Mumbai 400 011. )
5. Zakir Hussain Mohd. Asin Ansari )
Age 43 years, Occ Business, )
residing at Lambi Cement Chawl, Byculla )
Station Road, Room No.115, )
Mumbai 400 011. )
6. Sajid Akhtar Jamatullah )
Age 43 years, Occ Business, )
residing at Lambi Cement Chawl, )
Byculla Station Road Room No.154, )
Mumbai 400 011. )
-- 1 of 9 --
NM 2341/2018 ..2 .. S.C. Suit No.1836/2015(Disp.of)
7. Khalil Ahmed Shaikh )
Age 35 years, Occ Business, )
residing at Lambi Cement Chawl, )
Byculla Station Road Room No.109, )
Mumbai 400 011. )
8. Iqbal Ahmed Ansari )
Age 57 years, Occ Business, )
residing at Lambi Cement Chawl, )
Byculla Station Road Room No.100, )
Mumbai 400 011. )
9. Ansari Shafique Ahmed )
Age 50 years, Occ Service, )
residing at Lambi Cement Chawl, )
Byculla Station Road Room No.133, )
Mumbai 400 011. )
10. Shakeel Abdul Qadir Shaikh )
Age 28 years, Occ Business, )
residing at Lambi Cement Chawl, )
Byculla Station Road Room No.147, )
Mumbai 400 011. )
11. Usman Gani Shafatullah Sheikh)
Age 37 years, Occ Business, )
residing at Lambi Cement Chawl, )
Byculla Station Road Room No.156A,)
Mumbai 400 011. )
12. Aasif Ahmed Abdul Sattar )
AnsariAge 37 years, Occ Business, )
residing at Lambi Cement Chawl, )
Byculla Station Road Room No.68, )
Mumbai 400 011. )
13. Khalid Mohd. Saleh Ansari )
Age 46 years Occ Business, )
residing at Lambi Cement Chawl, )
Byculla Station Road Room No.64, )
Mumbai 400 011. )
-- 2 of 9 --
NM 2341/2018 ..3 .. S.C. Suit No.1836/2015(Disp.of)
14. Moqeetur Rehman Abdul Wahid )
Ansari, Age 49 years, Occ Business )
Occ Business, residing at Lambi Cement )
Chawl, Byculla Station Road )
Room No.122/98, Mumbai 400 011. )
15. Mohd Akhtaque Siddique Sheikh )
Age 47 years, Occ Business, )
residing at Lambi Cement Chawl, )
Byculla Station Road Room No.2, )
Mumbai 400 011. )...Plaintiffs
Vs.
1. The Municipal Corporation of )
Greater Mumbai having its office situated )
at Mapalika Bhavan Mahapalika Marg, Fort )
Mumbai 400 001. )
2. Assistant Commissioner, Municipal )
Corporation of Greater Mumbai, having )
its ward office at "E" Ward, Sankli )
Street, Mumbai 400 008. )...Defendants
APPEARANCE:
Ld. Adv. Mr. R.R. Mishra for the plaintiffs.
Ld. Adv. Mrs. Vidya Vyavahare for the defendants/MCGM.
CORAM : HER HONOUR ADHOC JUDGE
SMT.C. P. JAIN (C.R.NO.06)
DATED : 28th JANUARY, 2020.
O R D E R
This Notice of Motion No.2341/2018 is moved by plaintiffs
to condone the delay of 80 days and further to set aside the order dated
28.09.2017 whereby his S.C. Suit No.1836/2015 was dismissed in
default.
2. In the affidavit filed in support of Notice of Motion, it is
averred by Ld. advocate of plaintiffs that plaintiffs filed S.C. Suit
-- 3 of 9 --
NM 2341/2018 ..4 .. S.C. Suit No.1836/2015(Disp.of)
No.1836/2015 on 07.08.2015 against defendants to restrain them from
disconnecting the essential supply such as water, electricity in building
known as Lambi Cement Chawl situated on Plot bearing CTS No.54,
1 B I T Chawl, Ganesh Hari Parundeka Marg, Mominpura, Jacob Circle,
Mumbai 400 011 (hereinafter referred as Suit Premises for sake of
brevity in this judgment). In aforesaid suit, plaintiff had also filed
notice of motion No.3139/2015 on 12.08.2015. Plaintiffs were granted
statusquo order in their favour which was further continued from time
to time. On 24.08.2015 the aforesaid notice of motion No.3139/2015
was finally heard and same was dismissed on 28.09.2015. The earlier
statusquo order was also vacated. Plaintiffs had challenged the order
dated 28.09.2015 before Hon'ble Bombay High Court by AO bearing
No.1203/2015. The earlier order of statusquo by this court was
extended till 17.11.2015 and thereafter from time to time by Hon'ble
Bombay High Court. The AO No.1203/2015 was finally heard and was
dismissed on 04.10.2016. Plaintiffs had filed Review Petition
No.22/2017 against the order in aforesaid AO No.1203/2015. This
Review Petition No.22/2017 is pending before the Hon'ble Bombay
High Court. Plaintiffs were engrossed in aforesaid AO as well as in
filing Review Petition. They were unable to keep followup of this suit
due to oversight and lack of legal knowledge. Due to oversight, the
aforesaid facts could not be instructed to then advocate to enable him
to apprise this court with the following events in respect of suit
premises. The plaintiffs on the contrary were under impression that
their then advocate on record is appearing in the suit on each date and
the suit was stayed. The Review Petition No.22/2017 was listed on
19.12.2017 for hearing, it was adjourned on 18.01.2018. Due to
vacation from 23.12.2017 to 03.01.2018, the advocate on record was
-- 4 of 9 --
NM 2341/2018 ..5 .. S.C. Suit No.1836/2015(Disp.of)
not available. After reopening of the court, the plaintiffs approached
the then advocate on record to apprise him with the facts. At that time
plaintiffs were informed that their suit in this court was dismissed in
default by order dated 28.09.2017. Thereafter, plaintiffs promptly
approached the present advocate to take appropriate steps to set aside
the impugned order and for restoration of the suit. Their non
appearance in present suit is neither intentional nor deliberate. There is
delay caused of 80 days in filing the notice of motion. For aforesaid
reasons, they have prayed for condoning the delay and to set aside the
order of dismissal in default and for restoring the suit.
3. Defendants have resisted the aforesaid notice of motion by
filing their reply. According to them, the delay is not properly
explained. Plaintiffs were not diligent in pursuing their suit. Despite
given sufficient opportunities to plaintiffs, they failed to take necessary
steps. Therefore, the suit was dismissed on 28.09.2017. As no reasons
are made out and delay being not explained they have prayed for
dismissal of the notice of motion.
4. Heard both the learned advocates and perused the
proceeding. At the outset, it is not in dispute that plaintiffs had filed
S.C. Suit No.1836/2015 in which the notice of motion No.3139/2015
was filed by them. Statusquo order was granted in favour of plaintiffs
on 12.08.2015. Upon dismissal of their notice of motion on
28.09.2015, plaintiffs had moved AO bearing No.1203/2015 in Hon'ble
Bombay High Court. In this AO, the statusquo was granted and
continued from time to time till the dismissal of AO on 04.10.2016.
Plaintiffs have thereafter preferred Review Petition in Hon'ble Bombay
-- 5 of 9 --
NM 2341/2018 ..6 .. S.C. Suit No.1836/2015(Disp.of)
High court challenging order of AO No.1203.2015 which is pending in
Hon'ble Bombay High Court. The aforesaid facts are not disputed on
record.
5. It is the case made out in present notice of motion that
plaintiff was engrossed in proceeding with the appeal from order and
after being dismissed, in preferring Review Petition. Therefore, they
have lost sight of present suit. Neither their advocate has looked after
this suit.
6. It is pertinent to note that plaintiffs in present case are 15
in number. How it can be imagined that noone from any of the 15
plaintiffs could look after the suit filed in this court. Plaintiffs were
pursuing the appeal order No.1203/2015 which was arising out of
dismissal of the notice of motion filed in this suit. Therefore, plaintiffs
had knowledge about this suit. When there were 15 plaintiffs, it
cannot be imagined that noone could attend this suit. As plaintiffs
were pursuing the appeal AO No.1203/2015 which was arising out of
the dismissal of notice of motion in present suit, it cannot be imagined
that they would loose sight of this case.
7. It is further pertinent to note that plaintiff has not
tendered copies of the documents on record. The AO was dismissed on
04.10.2016. There is nothing on record as to when the Review Petition
was filed. From the registration number of Review Petition No.22/2017
it can be guessed that it was filed in the year 2017. Once the Review
Petition is filed at least then plaintiffs could have attended this suit. On
perusal of the roznama in S.C. Suit No.1836/2015 it is appearing that
-- 6 of 9 --
NM 2341/2018 ..7 .. S.C. Suit No.1836/2015(Disp.of)
plaintiff and his advocate failed to remain present since 11.12.2015 till
the dismissal of suit on 28.09.2017. Therefore, the plaintiff and his
advocate remained absent for more than 2 years. The conduct of
plaintiffs is reflecting that they were not interested in pursuing the suit.
Therefore, the suit was dismissed in default.
8. As discussed above, plaintiffs though 15 in number did not
attend this suit for period of two years. The reasons given in present
notice of motion that they lost sight of this suit also cannot be digested
as discussed above. There is no document tendered on record as to
when the Review Petition was filed to believe that plaintiffs could not
remain present in this court or to substantiate their reasons in this
notice of motion that they were busy in filing of Review Petition.
9. When there is delay of approximately 2 years in moving
this notice of motion for restoration of the suit, it was for plaintiffs to
substantiate their reasons made out in present notice of motion by
cogent evidence. Except the copy of daily status of 28.09.2017 in the
suit, plaintiffs have not tendered any document on record to digest the
reasons made out in this notice of motion. Plaintiffs could have
substantiated the reasons by filing the copies of business in AO No.
1203/2015, date of filing review petition etc. But no such evidence is
tendered on record. It is expected from parties that they should proceed
with their litigation diligently and not sleep over their rights. When
roznama in the suit No.1836/2015 is reflecting that plaintiff lost his
interest when his notice of motion was dismissed in this suit, it is not
inspiring confidence that plaintiffs were unintentionally not attending
the suit.
-- 7 of 9 --
NM 2341/2018 ..8 .. S.C. Suit No.1836/2015(Disp.of)
10. Plaintiffs have also disowned their earlier advocate. They
have made allegations that they were under impression that their then
advocate was remaining present in court but it appeared that their then
advocate did not attend their suit. Though allegations are made against
earlier advocate, there is nothing on record that any complaint is given
against the earlier advocate. Vague allegations disowning earlier
advocate is the casual practice adopted by the parties shifting their
burden upon their advocate. The averments in notice of motion are not
inspiring confidence. The reasons made out in the notice of motion are
not satisfactory and not appearing bonafide. There is inaction,
negligence on part of plaintiffs appearing from the proceeding.
Therefore, no bonafides can be attributed to plaintiffs. Therefore, I am
inclined to dismiss the notice of motion of plaintiffs. Accordingly, I
accede with the arguments of Ld. advocate for defendants as against
the arguments of Ld. advocate for plaintiffs. Consequently, I proceed to
pass following order.
ORDER
1. Notice of Motion No.2341/2018 is hereby dismissed with costs.
2. Notice of Motion No.2341/2018 is accordingly disposed of.
(C.P. Jain)
Adhoc Judge, (C.R.No.06)
Date :28.01.2020. City Civil Court, Gr. Bombay
Dictated on : 28.01.2020.
Transcribed on : 28.01.2020.
Signed on : 30.01.2020
-- 8 of 9 --
NM 2341/2018 ..9 .. S.C. Suit No.1836/2015(Disp.of)
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE AND TIME : 31.01.2020, 12.41 pm.
NAME OF STENOGRAPHER : Mr. Harshal D. Jagtap
Name of the Judge (With Court
Room No.)
HHJ Smt. C.P. Jain
C.R. No.06
Date of Pronouncement of
JUDGMENT/ORDER
28.01.2020
JUDGMENT/ORDER signed by
P.O. on
30.01.2020
JUDGMENT/ORDER uploaded on 31.01.2020
-- 9 of 9 --