Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM 3012-19 in Suit No. 1204-16
CNR NO.MHCC01 00823819
IN THE COURT OF CITY CIVIL FOR GREATER BOMBAY
AT BOMBAY
NOTICE OF MOTION NO. 3012 OF 2019
IN
L.C. SUIT NO. 1204 OF 2016
Shri Suresh G. More ....Plaintiff
V/s.
The Municipal Corporation of Gr. Mumbai & Ors. ..... Defendant
Coram : Sanjay N. Yadav, Judge
(Court Room no. 05)
Date : 29th August, 2019
Appearance:
Ld. Adv. Miss. Vrushali U. Kabare for the plaintiff.
Ld. Adv. Mr. Pradeep Patil for defendant/MCGM.
ORDER
1. Perused the application. The defendant corporation had moved
the notice of motion bearing no. 3012/2019 seeking permission to file
the written statement in the suit.
2. Heard Learned Advocate for the plaintiff and Learned Advocate
for the defendant corporation.
It is contended that the defendant Corporation is a public body
and a vast Organization and due to heavy workload, could not file the
written statement. The plaintiff has not filed the say to the contentions
raised in the notice of motion. The contentions for the delay in filing
the written statement have gone on challenge.
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2 NM 3012-19 in Suit No. 1204-16
The Hon'ble High Court in the case of Sopan Maruti Thopte &
Anr. V/s. Pune Municipal Corporation & Anr. in paragraph no. 28,
had observed as follows:
''28. Considering the aforesaid decisions it should be borne in
mind before issuance of an injunction that it is a discretionary and an
equitable relief. It is not mandatory that for mere asking such relief
should be given. It is not a charity at the cost of public. However, we
make it clear that the procedure established by law has to be followed
by the public authorities, whether it be the State or a local body,
including the Municipal Corporations. At the same time, the procedural
lapses, unintentional or intentional, which do not seriously affected the
substantive rights of a person, ought not to result in adinterim orders
which protect illegality having already been committed by the plaintiff
and to give licence of continuing fruits of such illegality for years.
Violators of law should not liberally be allowed to take protection of
Court of law by obtaining adinterim injunctions which have the effect
of continuing such violation.''
In the light of the observation of the Hon'ble Court, it is required
to seen the same time, the procedural lapses, unintentional or
intentional, which do not seriously affected the substantive rights of a
person, ought not to result in decree with the suit which protect alleged
illegality having already been committed by the plaintiff and to give
licence of enjoying fruits of such illegality. Violators of law should not
liberally be allowed to take protection of Court of law by obtaining
decree of the Court which have the effect of continuing such violation.
The allegation is of unauthorised constructions have effect on the
society. The public body i.e. corporation therefore need to be provided
opportunity to put forth its case. The plaintiff also will get opportunity
to prove its case.
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3 NM 3012-19 in Suit No. 1204-16
In order to provide a fair opportunity to the defendant, the order
of no written statement deserves to be set aside and the defendants
needs to be permitted to file the written statement. In the result,
following order is passed.
ORDER
1. The order of no written statement against the defendant/corporation
is set aside.
2. The defendant / corporation is permitted to file the written
statement.
3. The Notice of Motion No. 3012/2019 stands disposed off.
4. The written statement is taken on record.
(Sanjay N. Yadav)
Judge,
Date : 29.08.2019 City Civil Court, Mumbai.
Dictated on : 29.08.2019
Transcribed on : 30.08.2019
Signed by HHJ on : 30.08.2019
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE AND TIME : 31.08.2019 at 3.35 p.m.
NAME OF STENOGRAPHER : Mrs. K.S.Bhosale
Name of the Judge (With Court
Room no.)
HHJ Shri. Sanjay N. Yadav
C.R. no. 05
Date of Pronouncement of
JUDGMENT/ORDER
29.08.2019
JUDGMENT/ORDER signed by
P.O. on
30.08.2019
JUDGMENT/ORDER uploaded
on
31.08.2019
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