Final Order 1

Order Details: Notice of Motion
Pdf Text: CNR NO.:MHCC010097172019. 1 Notice of Motion No. 3566/2019
in L.C. Suit No. 245/2018.
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
NOTICE OF MOTION OF 3566 OF 2019.
IN
L.C. SUIT NO. 245 OF 2018.
Deepak Namdev Salunke…....................……… …. PLAINTIFF.
V/s.
MCGM+2. ....................................................... …. DEFENDANTS.
CORAM : A.G. Santani.
(Court Room No.11).
DATED : 03rd August, 2022.
APPEARANCES :
Mr. Vaibhav Salunkhe, Ld. Advocate for the Plaintiff.
Mr. Sunil C. Khandagale, Ld. Advocate for the Defendant No.1.
Mr. Ashish Mishra, Ld. Advocate for Defendant Nos. 2 and 3.
01. Defendant Nos.2 and 3 have taken out the Notice of Motion
(for brevity 'the NM'), for setting aside of the Order dtd. 26.04.2019, by
which the suit was proceeded without their reply to NM No.4430/2018.
Perused the NM, the accompanying affidavit of defendant No.2 and the
reply of plaintiff. 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. 26.04.2019 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, defendant Nos.1 and 2 contended that on
11.04.2019, their advocate sought time to file reply to NM Nos. 4027 of
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CNR NO.:MHCC010097172019. 2 Notice of Motion No. 3566/2019
in L.C. Suit No. 245/2018.
2017 and 4430 of 2018 and as such, the matter was adjourned by this
Court on 26.04.2019. On that day, the advocate appeared and tendered
reply on NM No. 4027 of 2017, but forgot to tender the pursis, adopting
this reply for NM No. 4430 of 2018 as well. Hence, this Court directed
that the said NM be proceeded without their reply. He further submitted
that on that day, their counsel forgot to tender the pursis that this reply
may be treated as their reply even for the other NM and therefore, they
may be permitted to proceed with the matter by treating their reply in
NM No. 4430/2018 also. The plaintiff objected this NM on the ground
that even after affording of ample opportunities, defendant Nos. 2 and 3
failed to file their reply and therefore, the matter proceeded ahead.
04. Having considered the rival stands, here, it is worth notable
that by filing this suit, the plaintiff assailed the notice dtd. 27.05.2015,
as illegal, along-with the other ancillary reliefs. During pendency of this
suit, defendant Nos. 2 and 3 were added as the party defendants as per
Ch/s. No. 307/2018. The record shows that on 26.04.2019, the holding
advocate for defendant Nos. 2 and 3 filed their reply to NM No. 4027 of
2017 and sought time to file reply for NM No. 4430 of 2018, which was
refused and the said Order of 'No reply' came to be passed. Immediately
thereafter, they preferred this NM for permission to treat their earlier
reply for NM No. 4430 of 2018. Needless to say that thenceforth, there
had been no progress in the matter. Surely, no substantial rights accrued
in favour of the plaintiff, as they could not file their reply within time.
This being the position, I am of the opinion that no prejudice would be
caused to the plaintiff, if they are permitted to treat their earlier reply as
reply for other NM. Further, it would facilitate this Court to decide the
NMs effectively. Hence, to achieve the ends of justice in proper prospect,
I feel that the NM is to be allowed. Therefore, I answered point No.1 the
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CNR NO.:MHCC010097172019. 3 Notice of Motion No. 3566/2019
in L.C. Suit No. 245/2018.
affirmative and in answer to point No. 2, I pass the following Order :
-: O R D E R :-
(i). Notice of Motion No. 3566/2019 is made absolute in
terms of Clause (a) and (b). Consequently, the Order
dated 26.04.2019, proceeding the matter without NM
reply of defendant Nos. 2 and 3, is set aside.
(ii). Costs to follow the event.
(iii). Notice of Motion No. 3566/2019, accordingly, stands
disposed of.
Sd/-
{A.G. Santani}
Mumbai. Ad-hoc Judge,
Dated : 03.08.2022. City Civil Court, Mumbai.
Dictated on : 03.08.2022.
Transcribed on : 04.08.2022.
Signed on : 04.08.2022.
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CNR NO.:MHCC010097172019. 4 Notice of Motion No. 3566/2019
in L.C. Suit No. 245/2018.
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
05.08.2022 at 11.30 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 03.08.2022.
Judgment/Order signed by P.O. on 04.08.2022.
Judgment/Order uploaded on 05.08.2022
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