Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 N.M. No. 3862 of 2019
CNR:MHCC01-010538-2019
IN THE BOMBAY CITY CIVIL C0URT AT BOMBAY
NOTICE OF MOTION No. 3862 OF 2019
IN
L.C. SUIT No. 1367 OF 2012
Mr. Mohammed Afzal S/o. Noor
Mohammed Patni .. Plaintiff
V/s.
1. The Municipal Corporation
of Greater Mumbai & Ors. .. Defendants
And
1. Fatima Akhtar Hussain Patni & Ors. .. Respondents/
Prop. Def. No.3(a) to 3(d)
Appearance:-
Adv. S. P. Srivastava for plaintiff.
Adv. Rishikesh Bandekar h/f Adv. Paresh Madkaikar for defendant No.4.
Adv. Sachin Vajale for defendant/BMC.
CORAM : HIS HONOUR ADDL. SESSIONS JUDGE
SHRI. R. S. ARADHYE
CITY CIVIL COURT, GR. BOMBAY
(C.R. NO.05).
DATE : 06/03/2025.
ORDER
The present Notice of Motion is taken out by the plaintiff
for setting aside dismissal order Dtd.16/09/2019 and restoration of
earlier Notice of Motion No.1630 of 2012.
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2. On behalf of the defendant No.4, by affidavit in reply Dtd.
29/04/2024, strong objection is taken for allowing the Notice of
Motion. I have gone through the affidavit in support of Notice of Motion
filed by the plaintiff and heard both the sides.
3. It is the contention of plaintiff that earlier Notice of Motion
No.1630 of 2012 which he filed for ad-interim relief against defendants
is concerned, the Predecessor of this Court has granted ad-interim relief
in his favour. However, on 18/07/2019, while crossing the road, as per
the plaintiff, he met with an accident and for the treatment, admitted in
BYL Nair Hospital, Mumbai. During the examination, fracture in the
foot and small finger was diagnosed, so for next 2-3 months, he was on
continuous medical follow-up. Therefore, on the relevant date i.e.
16/09/2019, due to medical reason, plaintiff was not in a position to
remain present in the Court and proceed with the Notice of Motion.
4. Besides this, it is also the contention of plaintiff that during
the same period, defendant No.3 died and for bringing his legal heirs on
record, Chamber Summons was required to be moved but because of
not getting death certificate, it could not be filed. It is thus, the
contention of plaintiff that for the genuine reason, on 16/09/2019, he
was absent and after the said dismissal order within prescribed period
of limitation, moved this present Notice of Motion, so taking into
consideration above facts, Notice of Motion may kindly be allowed and
thereby, earlier Notice of Motion No.1630 of 2012 be restored to its
original position and to continue the ad-interim relief granted on
17/05/2012.
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5. On behalf of defendant No.4, it is pointed out that earlier
Notice of Motion was of the year 2012 and after getting ad-interim
protection, till 2019 plaintiff has simply continued it. There is no reason
given by the plaintiff in its supporting affidavit that what was the reason
for not proceeding with that Notice of Motion and now by taking
disadvantage of medical reason, he is asking for setting aside the
dismissal order Dtd. 16/09/2019.
6. It is the fact that from the dismissal order Dtd.
16/09/2019, within 30 days means on 17/10/2019, plaintiff filed this
Notice of Motion. The reasons of non appearance of the plaintiff on the
date of dismissal of Notice of Motion No.1630 of 2012 are concerned,
he relied upon the medical document filed alongwith affidavit in
support of the Notice of Motion. From the said document, it reveals that
on 18/07/2019, plaintiff met with an accident and was rushed to the
BYL Nair Hospital, Mumbai for treatment. He sustained the fracture
alongwith some other injuries and treatment was going on for next
some days. The death of defendant No.3 is concerned, it is not disputed.
The plaintiff and defendant No.3 are real brothers in relation.
Therefore, taking into consideration the medical ground of plaintiff and
death of brother i.e. defendant No.3, I think fit that Notice of Motion
deserves to be allowed but not without costs, so in the result, following
order is passed.
ORDER
1. Notice of Motion No.3862 of 2019 is allowed.
2. Plaintiff do pay costs of Rs.2,000/- to the defendant No.4
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on or before next date and after compliance of this direction, Notice of
Motion No.1630 of 2012 be restored to it’s original number.
3. Continuation of ad-interim protection granted by order
Dtd.17/05/2012 is concerned, the said point will be decided afresh
after restoration of Notice of Motion No.1630 of 2012.
4. Notice of Motion is accordingly disposed off.
Date: 06/03/2025. (R. S. Aradhye)
Dictated on :06/03/2025. Judge, City Civil Court,
Typed on :07/03/2025. Gr.Mumbai.
Signed on :11/03/2025.
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5 N.M. No. 3862 of 2019
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
11/03/2025. 12.17 p.m. (Santosh B. Sawant )
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court room
No.)
HHJ Shri. R. S. Aradhye
(C.R.No.05)
Date of Pronouncement of
JUDGMENT/ORDER
06/03/2025.
JUDGMENT/ORDER signed by P.O.on 11/03/2025.
JUDGMENT/ORDER uploaded on 11/03/2025.
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