Final Order 1

Order Details: Notice of Motion
Pdf Text: CNR No. :MHCC01-009696-2019. Notice of Motion No. 3561/2019
in L.C. Suit No. 113/2013.
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
NOTICE OF MOTION OF 3561 OF 2019.
IN
L.C. SUIT NO. 113 OF 2013 (DISPOSED OF).
Gangaram Ghadge. ...............................………. ….. PLAINTIFF.
V/s.
MCGM. ..…………………………………………. …. DEFENDANT.
CORAM : SHRI. A.G. SANTANI.
(Court Room No.11).
DATED : 21st June, 2023.
APPEARANCES :
Mr. Mukesh Dubey, Ld. Advocate for the Plaintiff.
Mr. G.O. Giri, Ld. Advocate for the Defendant/MCGM.
*****
01. The plaintiff has taken out this Notice of Motion (for short
'the NM'), for setting-aside of the Order dtd. 16.08.2019, dismissing suit
No. 113/2013, and to restore the same to its original stage. Perused the
NM, his supporting affidavit and say of the defendant. Heard.
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. 16.08.2019 is
to be set-aside?. …................................ … Yes.
(ii). What Order ? …..............…...................… As per final Order.
-: REASONS FOR THE FINDINGS :-
AS TO POINT NO.1:
03. By this NM, the plaintiff came with a specific case that L.C.
Suit No. 113/2013 was pending for recording of his evidence. However,
on 16.08.2019, he was not keeping well and even he couldn’t inform his
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CNR No. :MHCC01-009696-2019. Notice of Motion No. 3561/2019
in L.C. Suit No. 113/2013.
advocate that he would not be able to attend the matter. Moreover, on
31.08.2019, he learnt that the suit came to be dismissed in default. He
submitted that during pendency of this suit, the protection was granted
in his favour. Further, he is having a good case on merits and only due
to unavoidable reasons, he couldn’t attend the suit. Now, the Officers of
the defendant are bent upon to demolish the said structure at any point
of time. Hence, it is necessary to set-aside this Order of dismissal and to
restore the suit on its original stage. The defendant resisted this NM as
sufficient opportunities were already granted to the plaintiff to lead his
side of evidence, wherein he failed.
04. Considering the rival stands, it is notable that by filing this
suit, the plaintiff prayed for declaration that the notice dtd. 04.01.2013,
issued U/s. 354 -A of the MMC Act, is bad in law. The record shows that
as the defendant didn’t prefer to contest this suit and the NM, the initial
ad-interim Order on NM was continued in favour of the plaintiff till the
decision of this suit and the NM was disposed of on 05.04.2018. In due
course of time, the matter was posted for recording of evidence. At that
time, the counsel for plaintiff informed that Court that the plaintiff was
not interested to proceed with the matter. Further, even on 16.08.2019,
when this suit came to dismissed in default, his advocate attended this
matter and informed that the plaintiff was not responding to him. In the
circumstances, the suit came to be dismissed for want of prosecution. Be
that as it may, the fact remained that the plaintiff filed this NM within
limitation. Moreover, to justify his absence, he contended that as he was
not well, he could not attend the matter and it resulted in dismissal. It is
pertinent to note that no prejudice would be caused even to the other
side, if this suit is restored, as he did not bother to contest the suit. This
being the position, I am of the opinion that he could satisfactorily show
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CNR No. :MHCC01-009696-2019. Notice of Motion No. 3561/2019
in L.C. Suit No. 113/2013.
that there was sufficient cause for his non-appearance on the day when
this suit was called for hearing and therefore, he may be afforded a last
chance to proceed with the suit. Likewise, it would be better to have the
trial on merits. However, surely, there are latches on the plaintiff’s part
to promptly proceed with this suit, which is more that 09 years old. On
this background, while considering this NM, it would be just to impose
adequate costs upon him to have further delayed this old suit. Hence, I
answered point No.1 the affirmative and in answer to point No. 2, I pass
the following Order :
-: O R D E R :-
(i). Notice of Motion No. 3561/2019 is made absolute in terms of
prayer clause (a) only, subject to payment of costs of Rs. 5,000/-
(Rs. Five thousand) in favour of the DLSA, Mumbai, within the
period of four weeks from today.
(ii). On payment of this costs, the proceeding of Suit No. 113/2013
(disposed of on 16.08.2019), be restored to its original stage.
(iii). Notice of Motion No. 3561/2019, accordingly, stands
disposed of.
{A.G. Santani}
Mumbai. Judge,
Dated : 21.06.2023. City Civil Court, Mumbai.
Dictated on : 21.06.2023.
Transcribed on : 22.06.2023.
Checked and Signed on : 22.06.2023.
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CNR No. :MHCC01-009696-2019. Notice of Motion No. 3561/2019
in L.C. Suit No. 113/2013.
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
23.06.2023 at 10.55 a.m. 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 21.06.2023.
Judgment/Order signed by P.O. on 22.06.2023.
Judgment/Order uploaded on 23.06.2023.
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