Final Order 1

Order Details: Notice of Motion
Pdf Text: Notice of Motion No. 3468/2019 ..1.. In Suit No. 4899/2010
IN THE BOMBAY CITY CIVIL COURT FOR GREATER BOMBAY
AT BOMBAY
NOTICE OF MOTION NO. 3468 OF 2019
IN
LONG CAUSE SUIT NO. 4899 OF 2010
Naglaxmi Mariappan Pillai of ]
Mumbai of Mumbai Indian Inhabitant ]
residing at sector GII Room No.125, ]
Dindoshi Municipal Colony, Gen. ]
Arunkumar Vaidya Marg, Goregaon (E), ]
Mumbai 400065 ]...Plaintiff
V/s.
1) The Brihan Mumbai Municipal ]
Corporation a statutory body ]
incorporated under the Bombay ]
Municipal Corporation Act 1888 ]
having its head office at Mahapalika ]
Building, Mahapalika Marg, Fort, ]
Mumbai 400001 ]
2) Assistant Municipal Corporation ]
P/North Ward, mamletdarwadi, ]
Liberty Garden, Malad (W), ]
Mumbai 400064 ]...Defendants
Mr.Yadav h/f Mr. B.P.Shukla, Advocate for plaintiff
Ms. Hajare, Advocate for defendant/BMC
CORAM : HIS HONOUR JUDGE SHRI A. N. MARE
(COURT ROOM NO. 11)
DATED : 5TH OCTOBER, 2019.
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Notice of Motion No. 3468/2019 ..2.. In Suit No. 4899/2010
O R D E R
Defendants 6 and 7 have sought rejection of the plaint
under O.7 R.11 of CPC on the ground that the suit premises is
demolished by defendants 6 and 7. An amendment sought to challenge
said demolition was refused by this Court and writ petition against said
refusal is withdrawn by the plaintiff. Thus proceeding with the suit is
unnecessary as the suit is rendered infructuous and so the plaint be
rejected.
2. Plaintiff has opposed the notice of motion on the ground
that defendants 6 and 7 are avoiding to permit reconstruction of the
suit premises to deny the plaintiff's right in the suit. Though the suit
premises is demolished, the relief of recovery of possession still survives.
Suit is not rendered infructuous. Though the amendment is refused by
this Court, substantial relief for possession is still undisputed.
3. Perused. Heard.
4. Plaint can be rejected if a case is made out which may fall
in any of the Clauses of R.11 of O.7 of CPC.
5. Advocate for defendants 6 and 7 submitted that suit against
defendant Nos. 1 to 5 is withdrawn by the plaintiff. The suit premises is
demolished and thus suit is rendered infructuous. According to her, the
cause of action, thus, has come to an end.
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Notice of Motion No. 3468/2019 ..3.. In Suit No. 4899/2010
6. On the contrary Advocate for plaintiff submitted that bare
reading of plaint indicates that the cause of action still survives.
7. It is not the case of defendants 6 and 7 that the plaint does
not disclose cause of action. There is vital difference between a case
where plaint does not disclose the cause of action and a case in which
the cause of action has come to an end due to subsequent events. Thus,
this is not a case in which the plaint does not disclose cause of action.
Thus clause (a) of R.11 of O.7 of CPC. Is not attracted in this case.
8. Bear reading of the plaint reveals that plaintiff has claimed
herself to be the tenant of defendants 6 and 7 and is paying rent at the
rate of Rs.400/ per month. The relief was, though in the alternative,
claimed for removal of encroachment and direction to defendants 6 and
7 to put the plaintiff in possession of the suit premises.
9. Considering the relationship between the plaintiff and
defendants 6 and 7, therefore the relief of direction to defendants 6 and
7 to put the plaintiff in possession still remains. Though it is considered
for the sake of argument that the premises is demolished, that by itself
will not render the plaint liable for rejection in the light of relationship
between plaintiff and defendants 6 and 7 and the direction sought
against defendants 6 and 7 to put the plaintiff in possession of the suit
premises. In view of this, I hold that the notice of motion is devoid of
merits. Consequently, I pass following order.
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Notice of Motion No. 3468/2019 ..4.. In Suit No. 4899/2010
Order
1. Notice of Motion No. 3468 OF 2019 is dismissed.
2. Costs in cause.
(A.N. MARE)
05.10.2019 JUDGE
BOMBAY CITY CIVIL COURT,
GREATER BOMBAY.
Dictated on : 05.10.2019
Transcribed on : 09.10.2019
Signed on : 24.10.2019
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Notice of Motion No. 3468/2019 ..5.. In Suit No. 4899/2010
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED ORDER.”
UPLOAD DATE TIME STENOGRAPHER NAME
02.11.2019 5.21 p.m. Mahendrasing D. Patil (H.G. Steno)
Name of the Judge H.H.J. SHRI. A. N. MARE
(Court Room No. 11)
Date of pronouncement of Order 05.10.2019
Order signed by P.O. on 24.10.2019
Order uploaded on 02.11.2019
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