Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM no. 2814-19 in L.C.SUIT no.1767-11
IN THE CITY CIVIL COURT FOR GREATER BOMBAY
AT MUMBAI.
NOTICE OF MOTION NO. 2814 OF 2019
(CNR no. MHCC010077342019)
IN
LONG CAUSE SUIT NO. 1767 OF 2011
(CNR no. MHCC010022472011)
Mr. Arakal Peter James ]
Age : 72 years, Occ. Business, ]
Owners of Shop no. 12, Residing at Flat 109110, ]
CWing, Molax Co. Op. Housing Society Limited, ]
Plot no. 6470, Chheda Nagar, ]
Chembur, Mumbai 400 089. ]....Plaintiff
V/s
1. The Municipal Corporation of Gr. Mumbai, ]
having their Head office at Mahapalika Bhavan, ]
Mahapalika Marg, C.S.T. Railway Stn., ]
Mumbai400 001. ]
2. Mr. Ratnakar S. Shetty ]
Age : 62 years, Occ. : Business ]
Residing at Flat No. 211, Molax Co. Op. ]
Housing society Limited Plot No.6470, ]
Chheda Nagar, Chembur, Mumbai400 089. ]....Defendants
Appearances:
Ld. Advocate Mr. Y. K. Tiwari for the Plaintiff.
Ld. Advocate Mr. S. C. Khandagale for defendant no. 1/MCGM.
Ld. Advocate Mr. Shrivastav for defendant no. 2/MCGM.
CORAM : HIS HONOUR JUDGE
SHRI C.V. MARATHE
(Court Room no. 8)
DATED : 18th October, 2019
-- 1 of 6 --
2 NM no. 2814-19 in L.C.SUIT no.1767-11
O R A L O R D E R
1. By instant application by Notice of Motion, the plaintiff has
prayed to restore Notice of Motion No.837 of 2012 by setting aside
order of rejection of the said Motion dated 19.07.2018. In the
supporting affidavit, it is claimed that the hearing on the said Notice of
Motion No.837 of 2012 never took place and the Notice of Motion came
to be rejected. While explaining the aforesaid ground, it is mentioned
that the instant suit is part of 13 suits, however, Hon'ble High Court
vide its order dated 08.01.2014 expedited hearing of only three
applications from the group viz. Notice of Motion No.1848 of 2011 in
L.C. Suit No.1707 of 2011, Notice of Motion No.1847 of 2011 in L.C.
Suit No.1708 of 2011, and Notice of Motion No.1846 of 2011 in L.C.
Suit No.1709 of 2011, pursuant to that order this Court heard only
those three Motions in three suits but passed orders in all 13 Suits
rejecting the Notice of Motion in every suits. The plaintiff has requested
to restore the Notice of Motion as cause great loss will be caused if the
prayers are not granted.
2. This application is opposed by defendants by denying all the
contentions. Defendant no.2 has contended that the Motion is taken out
to delay the matter, the orders in all 13 suits are passed after hearing
-- 2 of 6 --
3 NM no. 2814-19 in L.C.SUIT no.1767-11
both sides and after considering various documents and authorities
produced by the parties. It is further contended that the order is passed
on 19.07.2018 and instant application is filed in July 2019, which
shows that the plaintiff wants to protract the trial of this old suit.
3. After going through the Roznama of the case, it can be seen that
on 28.06.2018 advocate for the plaintiff was present and adjournment
was granted as last chance to him to argue on the notice of motion after
noting that the Hon'ble High Court had directed to dispose of the Notice
of Motion expeditiously. The Roznama dated 05.07.2018 shows that
arguments of both sides were heard on the Notice of Motion and the
matter was fixed for filing citations. On 10.07.2018, plaintiff requested
time to file citations and therefore, the matter was fixed for filing
citations on 13.07.2018 and thereafter, for order on 19.07.2018. It is
pertinent to note that after the Notice of Motion was rejected on
19.07.2018, Ld. Advocate for the plaintiff requested to extend ad
interim protection. This shows that on the day when the order was
passed Ld. Advocate for the plaintiff was present but he never claimed
that he was not heard on the Notice of Motion. Further Roznama shows
that the matter was fixed for Recording Evidence on 16.08.2018,
04.09.2018, 27.09.2018, 26.10.2018, 06.12.2018. It is further to be
noted that on 15.01.2019 defendant no. 2 filed say on compilation of
-- 3 of 6 --
4 NM no. 2814-19 in L.C.SUIT no.1767-11
documents of the plaintiff. From the above Roznama of this proceeding
it can be seen that Ld. Advocate for the plaintiff was heard on the
Notice of Motion and he never raised the plea that he was not heard at
the earliest. In other words, the instant Notice of Motion is filed after a
considerable delay with some deliberations on the issue.
4. Ld. Advocate for the plaintiff has submitted that he has remedy to
file appeal but Hon'ble Appellate Court will question him as to why he
did not move the Trial Court for setting aside the order for not hearing
him. As discussed herein earlier, the Notice of Motion is decided on
merits by the Court and the plaintiff has statutory remedy to prefer
appeal against the order under Order XLIII Rule 1 of Code of Civil
Procedure, 1908. It is trite law that the Court passing temporary
injunction order is empowered to discharge or vary or set aside the
order under Order XXXIX Rule 4 of Code of Civil Procedure, 1908 but
the plaintiff has to show that such discharge, variation or setting aside
has been necessitated by a change in the circumstances or the order has
caused undue hardship to the party. In this matter the plaintiff has not
made out any case showing that there are changes in the circumstances
after the order dated 19.07.2018. Even though, it is mentioned that
undue hardship will be caused to the plaintiff, there is no material to
suggest the kind of undue hardship which will be caused to the plaintiff.
-- 4 of 6 --
5 NM no. 2814-19 in L.C.SUIT no.1767-11
Therefore, Notice of Motion was decided on merits and there is no merit
in this notice of motion. Hence, following order:
ORDER
1. Notice of Motion No.2814 of 2019 is dismissed.
2. Costs in cause.
sd/
(C. V. Marathe)
Judge,
Date : 18.10.2019 City Civil Court, Gr. Mumbai.
Dictated on : 18.10.2019
Transcribed on : 18.10.2019
Signed by HHJ on : 18.10.2019
-- 5 of 6 --
6 NM no. 2814-19 in L.C.SUIT no.1767-11
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE AND TIME : 19.10.2019 at 1.00 p.m.
NAME OF STENOGRAPHER : Mrs. Gayatri P. Acharekar
Name of the Judge (With Court
Room no.)
HHJ Shri. C. V. Marathe
C.R. no.08
Date of Pronouncement of
JUDGMENT/ORDER
18/10/2019
JUDGMENT/ORDER signed by
P.O. on
18/10/2019
JUDGMENT/ORDER uploaded
on
19/10/2019
-- 6 of 6 --