Date: 13-11-2019
Business: None for plaintiff.
Adv. Atharav Sawant for defendant no.1 present and tendered original C/S NO.1930/19. Copy served to the other side.
Adv. Mrs. R.M. Hazare for Deft no.2 and 3 /MCGM present.
On oral request of advocate for Defendant no.2 and 3, adjournment granted
Matter is adj to 17/01/2020 for C/S reply.
Next Purpose: C/S REPLY
Next Hearing Date: 17-01-2020
Date: 17-01-2020
Business: (Incharge Court of C.R.No.8)
Adv. Ms. Chourasiya for Plaintiff present.
None for Defendant/MCGM.
Earlier order, if any, to continue till next date.
Matter adjd. to 17.02.2020 for compliance.
Next Purpose: C/S REPLY
Next Hearing Date: 17-02-2020
Date: 17-02-2020
Business: already adjd 13.04.2020.
Next Purpose: C/S REPLY
Next Hearing Date: 13-04-2020
Date: 13-04-2020
Reason For Adjournment: National Lock Down
Next Purpose: C/S REPLY
Next Hearing Date: 28-04-2020
Date: 28-04-2020
Business: National lock down - 4
Next Purpose: C/S REPLY
Next Hearing Date: 06-06-2020
Date: 06-06-2020
Reason For Adjournment: National Lock Down
Next Purpose: C/S REPLY
Next Hearing Date: 24-06-2020
Date: 24-06-2020
Reason For Adjournment: Adjourned due to Covid-19
Next Purpose: C/S REPLY
Next Hearing Date: 04-09-2020
Date: 04-09-2020
Business: Adjd to
Next Purpose: C/S REPLY
Next Hearing Date: 21-10-2020
Date: 21-10-2020
Reason For Adjournment: Adjourned due to Covid-19
Next Purpose: C/S REPLY
Next Hearing Date: 04-12-2020
Date: 04-12-2020
Business: None for plaintiff.
None for deft no.1/applicant.
Adv. Smita Chavan h/f Adv. Khandagale for deft no.2/MCGM present.
Matter adjd to 29/01/2021 for Ch/s Reply.
Next Purpose: CHAMBER SUMMONS
Next Hearing Date: 29-01-2021
Date: 29-01-2021
Business: Matter adjd to 05/03/2021 for Ch/s Reply.
Next Purpose: CHAMBER SUMMONS
Next Hearing Date: 05-03-2021
Date: 05-03-2021
Business: Matter adjd to 12/04/2021 for Ch/s Reply.
Next Purpose: CHAMBER SUMMONS
Next Hearing Date: 12-04-2021
Date: 12-04-2021
Reason For Adjournment: Adjourned due to Covid-19
Next Purpose: CHAMBER SUMMONS
Next Hearing Date: 02-07-2021
Date: 02-07-2021
Business: Due to Covid-19 pandemic, matter is adjourned.
Next Purpose: CHAMBER SUMMONS
Next Hearing Date: 04-08-2021
Date: 04-08-2021
Business: H.H.J. is on leave.
Next Purpose: CHAMBER SUMMONS
Next Hearing Date: 17-09-2021
Date: 17-09-2021
Business: None for plaintiffs.
Adv Atharv Sawant for defendant no.1 present.
Adv Smita Chavan h/f Adv Mrs Tondwalkar for defendant nos.2 and 3/ MCGM present.
Plaintiff since long fails to file reply to the Ch/s. If plaintiff fails to file reply to Ch/s on next date, it will be proceeded without reply.
Adjd. To 20/10/2021 for reply to Ch/s.
Next Purpose: C/S REPLY
Next Hearing Date: 20-10-2021
Date: 20-10-2021
Business: Advocate Mr. Sherekar for plaintiff is present and seeks time to file reply on NM. Time is granted as last chance.
Advocate Vaishali Chaturvedi for defendant no. 1 is present.
Advocate Tondvalkar for deft. nos. 2 and 3/MCGM is present has given say on C/S No.1930/19 itself.
Adjourned for C/S reply to 09.11.2021.
Next Purpose: C/S REPLY
Next Hearing Date: 09-11-2021
Date: 09-11-2021
Business: Adv Akshay Kapadiya with Adv Sherekar for plaintiff present.
Adv Atharv Sawant for defendant no.1 present.
Adv Smita Chavan for defendant nos.2 and 3 / MCGM present.
Adv for plaintiff seeks time to file reply to Ch/s. On 17.09.2021, specific directions was given to the plaintiff that if he fails to file reply to Ch/s, Ch/s will be proceeded without his reply. On last date on 20.10.2021, plaintiff has not filed reply to Ch/s. Therefore in my opinion, sufficient opportunity given to the plaintiff to file reply to Ch/s, hence \''\''no reply to Ch/s\''\'' order passed against plaintiff, hence matter is adjourned for ch/s hearing.
Adjd. To 17/12/2021 for Ch/s hearing.
Next Purpose: C/S HEARING
Next Hearing Date: 17-12-2021
Date: 17-12-2021
Business: Adv Sherekar for plaintiff present and tendered an application to withdraw the Suit. TOR and marked as Exh.7
Plaintiff nos.1 and 2 present.
Adv Atharva Sawant for defendant no.1 present.
Adv. Mrs. Tondwalkar for Defendant no.2/MCGM is present.
ORDER ON EXH.7- Other side to say.
Advocates for defendant no.1 and 2 have given say on Exh.7 itself.
Adjd. To 17/01/2022 for hearing on Exh.7.
Next Purpose: HEARING
Next Hearing Date: 17-01-2022
Date: 17-01-2022
Business: In view of office order no.7/2022 dated 07.01.2022 of Hon\''ble Principal Judge, City Civil and Sessions Court, Mumbai, pursuant to circular dated 06.01.2022 of Hon\''ble Bombay High Court prescribing Standard Operating Procedure (SOP) in the wake of sharp surge in COVID-19 cases (all variants) and the views of stakeholders, the matter is adjourned without passing any adverse order against the party/s.
Matter is adjd to 21.02.2022 for hearing on Exh.7.
Next Purpose: HEARING
Next Hearing Date: 21-02-2022
Date: 21-02-2022
Business: HHJ is on leave.
Next Purpose: HEARING
Next Hearing Date: 09-03-2022
Date: 09-03-2022
Business: None for plaintiff.
None for defendant no.1
Adv Mrs Tondwalkar for defendant nos.2 and 3 / MCGM is present.
K.B.
L.O. at 3.12 p.m.
Adv Sherekar for plaintiff present.
Adv Atharv Sawant for defendant no.1 present and requests for time to file reply to Exh.7. Time is granted till next date.
Adv Mrs Tondwalkar for defendant nos.2 and 3 / MCGM is present.
Adjd. To 23/03/2022 for filing reply to Exh.7 by defendant no.1.
Next Purpose: REPLY
Next Hearing Date: 23-03-2022
Date: 23-03-2022
Business: None for plaintiff.
Adv Atharv Sawant for defendant no.1 present and tendered reply to Exh.7.
Adv Mrs Tondwalkar for defendant no.2 and 3/ MCGM is present.
Adjd. To 11/04/2022 for hearing on Exh.7.
Next Purpose: HEARING
Next Hearing Date: 11-04-2022
Date: 11-04-2022
Business: None for plaintiff.
None for defendant no.1.
Adv Mrs Tondwalkar for defendant nos.2 and 3/ MCGM is present.
K.B.
L.O. at 11.35 a.m.
Adv Kapadiya with Adv Sherekar for plaintiff present.
None for defendant no.1.
Adv Mrs Tondwalkar for defendant nos.2 and 3/ MCGM is present.
Heard Ld advocate for plaintiff on Exh.7.
K.B. for hearing on Exh.7 by defendant no.1.
L.O. at 2.45 p.m.
None for plaintiff.
None for defendant no.1.
Adv Khandagale h/f Adv Mrs Tondwalkar for defendant nos.2 and 3/ MCGM is present.
Adjd. To 10/06/2022 for hearing on Exh.7 by defendant no.1.
Next Purpose: HEARING
Next Hearing Date: 10-06-2022
Date: 10-06-2022
Business: Adv. Sherekar for plaintiff present.
None for deft. No. 1.
Adv. Mrs. Tondwalkar for defendant No. 2 and 3/ MCGM is present.
Adjd. to 13/07/2022 for hrg. on Exh. 7.
Next Purpose: HEARING
Next Hearing Date: 13-07-2022
Date: 13-07-2022
Business: Adv. Akshay Kapadia for plaintiff present.
None for deft. No. 1.
Adv. Mrs. Tondwalkar for defendant Nos. 2 to 3/ MCGM is present.
Heard Adv. for plaintiff on Exh. 7.
K.B.
L.O. at 02.45 p.m.
Adv. Atharva Sawant for deft. No. 1 present.
Rest of the same appearance.
Heard Adv. for deft. No. 1 partly on Exh. 7.
K.B.
L.O.
Due to paucity of time, matter is adjourned till next date.
Adjd. to 22/07/2022 at 01.00 p.m. for further hrg. on Exh. 7 by deft. No. 1.
Next Purpose: HEARING
Next Hearing Date: 22-07-2022
Date: 22-07-2022
Business: None for plaintiff.
Adv. Rahul Soman for deft. No. 1 present.
Adv. Mrs. Tondwalkar for defendant Nos. 2 to 3/ MCGM is present.
Heard arguments of Adv. for deft. No. 1, Adv. for deft. No. 2 to 3/MCGM on Exh. 7.
Adjd. to 08/08/2022 for order on Exh. 7.
Next Purpose: ORDER
Next Hearing Date: 08-08-2022
Date: 08-08-2022
Business: Adv. Sherekar for plaintiff present.
None for deft. No. 1.
Adv. Mrs. Tondwalkar for defendant Nos. 2 and 3/ BMC is present.
K.B.
L.O.
Same appearance.
Following order is passed on Exh.7-
O R D E R
1. Plaintiff filed application for permission to withdraw of suit with liberty to file a fresh suit for alternate accommodation and or compensation. It is contended that defendant No.2/ corporation by letter dated 30/01/2021 withdrawn a notice issued u/S 314 of the M.M.C. Act. Therefore, plaintiff want to withdraw the suit with liberty to file fresh suit.
2. The defendant No.1 strongly opposed application for filing reply. It is contended that this defendant has filed Ch/S No. 1930/2019 for dismissal of the suit and present application for withdrawal of suit has been filed after thought. The plaintiff is not entitled to withdraw the suit with liberty to file fresh suit because plaintiff suppressed from this Court that they have filed another suit No. 872/2019 challenging the notice u/S 314 issued by the corporation as such plaintiff is cannot be permitted to withdraw the suit as prayed. The defendant has completed the development and handed over possession of new shop to the plaintiffs. The notice u/S 314 has been withdrawn, hence, no cause of action survives against defendant No.1.
3. Defendant/corporation submitted that unconditional withdraw of the suit may be granted.
4. Heard learned counsel for the parties.
5. Adv. for defendant No.1 submitted that the plaintiff cannot be permitted to withdraw the suit unless he satisfy the Court that he has shows sufficient ground for permission to withdraw the suit as contemplated under order 23 rule (1) (3) of the C.P.C. In support of submission he relied on judgment of Hon\''ble Allahabad High Court in Abdul Gafur v/s Abdul Rehman in which it is held that the plaintiff has to show sufficient ground to withdraw the suit with liberty to file fresh suit. He further relied on judgment of Hon\''ble Allahabad High Court in Baldevdas v/s Joshi Gauri Datt in which he held that Court has jurisdiction to grant permission to withdraw the suit with liberty to file fresh suit only if there is a formal defect or a defect of an analogous character as a result of which the suit is bound to fail. He also relied on judgment of Hon\''ble Himachal Pradesh High Court in Promila Bakshi and Ors. v/s Ashok Bhatia and Ors. In which it is held that if the suit neither suffered from any formal defect nor was any fresh ground made out to withdraw the suit with liberty to file fresh suit, it can not be withdrawn conditionally.
6. The plaintiffs are seeking permission to withdraw the suit with permission to file fresh suit for relief of alternate accommodation and or compensation. It is contended by the plaintiffs that the corporation has withdrawn notice u/s 314 of M.M.C. Act. The present suit has been filed for mandatory injunction, in respect of the shop No.5 situated near fire brigade, chembur naka on CTS No.457 and 458. Order 23 rule (1), clause of CPC contemplates that where the Court is satisfied that (a) a suit must fail by reason formal defect or (b) that there are sufficient grounds for allowing plaintiff to institute fresh suit for subject matter of the suit or part of the claim. The Court can grant liberty to withdraw suit conditionally. In the case in hand plaintiff is seeking permission to withdraw the suit on ground that corporation has withdraw notice u/S 314 of M.M.C. Act. The plaintiff is withdrawing suit conditionally with liberty to file fresh suit for relief of compensation and or alternate accommodation. The plaintiff is not seeking permission to file fresh suit for same relief. It is well settled that if the relief claimed in the subsequent suit is not same as the relief claimed in the first suit, the second suit cannot be said to be in respect of same subject matter. Therefore, I find no substance in the objection raised by the defendant No.1. I gone through the judgments relied by the defendant No.1. The facts of the case in hand and judgments relied by defendant No.1 are not identical. Therefore, the judgments relied by defendant No.1 are not applicable to this case. The plaintiff has shown sufficient reason for withdrawal of this suit. Therefore, in view of discussion above made, application for withdrawal of suit with liberty to file fresh suit for alternate accommodation and or compensation deserves to be allowed as prayed, hence I passed following order-
O R D E R
1. Application below Exh.7 is allowed as prayed.
2. L.C. Suit No. 1772/2016 is disposed of as withdrawn.
3. The parties to bear their own costs.
4. In view of withdrawal of suit, Ch/S No. 1930/2019 stands disposed of.
Nature Of Disposal: WITHDRAWL
Disposal Date: 08-08-2022
