Final Order 1

Order Details: Notice of Motion
Pdf Text: CNR NO. MHCC01-008981-2019. Notice of Motion No. 3303/2019.
in L.C. Suit No. 384/2014.
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
NOTICE OF MOTION OF 3303 OF 2019.
IN
L.C. SUIT NO. 384 OF 2014. (DISPOSED OF)
Ramji Rambali Yadav………..…....................… …. PLAINTIFF.
V/s.
MCGM. …......................................................... …. DEFENDANT.
CORAM : Shri. A.G. Santani.
(Court Room No.11).
DATED : 3rd January, 2023.
APPEARANCES :
Mr. Vishal Lokhande, Ld. Advocate for the Plaintiff.
Mrs. Jyoti Mhatre, Ld. Advocate for the Defendant/MCGM.
*************
01. The plaintiff has taken out this Notice of Motion (for short
the NM), under Order IX Rule 9 of the C.P.C., 1908, for setting aside the
Order dtd. 04.03.2019, dismissing Suit No. 384/2014 and to restore the
same to its original position. Perused the NM, his supporting affidavit
and say of the defendant. Heard both the sides.
02. Considering the record, the point for determination, along -
with my finding and the reasons therefor, are as under :
Sr. No. POINTS FINDINGS
(i). Whether the Order dtd. 04.03.2019 is
to be set-aside?. …................................ … Yes.
(ii). What Order ? …..............…...................… As per final Order.
-: REASONS FOR THE FINDINGS :-
AS TO POINT NO.1 :
03. By filing this NM, the plaintiff contended that the said suit
i.e. L.C. Suit No. 384/2014 was pending for recording of his evidence.
However, as his mother was suffering from various ailments and was at
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CNR NO. MHCC01-008981-2019. Notice of Motion No. 3303/2019.
in L.C. Suit No. 384/2014.
native place i.e. Gazipur, Uttar Pradesh State, he had been to her in July,
2018 and remained there to look after to her. He returned to Mumbai in
the first week of April, 2019 and immediately contacted to his advocate.
That time, he came to know that on 04.03.2019, this suit was dismissed
by this Court. He further contended that on 04.03.2019, his counsel was
held up in some part-heard matter at Dindoshi Court and therefore, he
could not attend the matter. On 11.04.2019, he applied for the Certified
copy of the said Order and received the same on 02.05.2019. Later on,
he filed this NM, which is well within the period of limitation. He is also
ready to proceed with the matter and is having the good case on merits.
The defendant objected this NM on the count that on 06.09.2017, issues
were framed in this mater and thenceforth, from 15.11.2017 till passing
of this Order of dismissal on 04.03.2019, the plaintiff failed to lead his
side. Further, the defendant already demolished the notice structure on
03.08.2013 with the help of police personnel and the demolition report,
along-with photographs, is also filed on record. On this background, the
NM is filed only to harass to the defendant and it is to be dismissed.
04. Having considered the rival stands, here, it is worth notable
that by filing the initial L.C. Suit No. 384/2014, the plaintiff assailed the
notice of dtd. 17.10.2011, issued U/s.351 of the MMC Act and Speaking
Order dtd. 09.11.2011 as bad in law, contending inter-alia that the suit
premises existed before the year of 1961-1962 and it was so constructed
prior to the datum line. Accordingly, on 06.09.2017, the suit issues were
framed at Exhibit 09. As such, certainly, the plaintiff raised some triable
issues before the Court and even the defendant was also called upon to
substantiate the alleged demolition of the premises. However, the record
shows that after framing of the issues, the plaintiff was never diligent to
proceed with the matter. And, after affording of ample opportunities, he
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CNR NO. MHCC01-008981-2019. Notice of Motion No. 3303/2019.
in L.C. Suit No. 384/2014.
failed to lead his evidence and hence, the said suit came to be dismissed
as per the Order dtd. 04.03.2019. Even on that day, no one attended the
matter. Now, in view of this NM, he is trying to justify his absence from
the suit as he was out of station, attending his ailing mother. That apart,
it is also clarified that dismissal of the suit, this NM is preferred within
the period of limitation. Moreover, as referred earlier, he could raise the
triable issues, while questioning the notice and the Speaking Order.
This being the position, I am of the opinion that he could satisfactorily
show that there was sufficient cause for his non-appearance on the day
when the suit was called for hearing and therefore, he may be given one
last chance to proceed with the suit. It would be better to have a full-
fledged trial on the merits, rather to shut it abruptly in the mid-way.
However, it is equally true that the record shows his long absence from
the matter, which resulted in dismissal. On this background, while
considering this NM in his favour, it is necessary that some costs must
be imposed upon him to have further delayed this old suit. Hence, I
answered point No.1 the affirmative and to answer point No. 2, I pass
the following Order :
-: O R D E R :-
(i). Notice of Motion No. 3303/2019 is made absolute in
terms of Clause (a) and (b), subject to payment of costs
of Rs. 5,000/- (Rs. Five Thousand) in favour of the
D.L.S.A., Mumbai, within three weeks from the passing
of this Order.
(ii). On the payment of costs, the proceedings of L.C. Suit
No. 384/2014 be restored to its original stage.
(iii). Notice of Motion No. 3303/2019, accordingly, stands
disposed of.
{A.G. Santani}
Mumbai. Ad-hoc Judge,
Dated : 03.01.2023. City Civil Court, Mumbai.
Dictated on : 03.01.2023.
Transcribed on : 04.01.2023.
Checked and Signed on : 04.01.2023.
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CNR NO. MHCC01-008981-2019. Notice of Motion No. 3303/2019.
in L.C. Suit No. 384/2014.
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME
04.01.2023 at 12.10 p.m.
Name of the Stenogrpher
Mrs. S.R.Mejari
Name of the Judge (with Court Room No.) HHJ Shri A.G.Santani
(Court Room No.11).
Date of Pronouncement of Judgment/Order 03.01.2023
Judgment/Order signed by P.O. on 04.01.2023
Judgment/Order uploaded on 04.01.2023
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