Final Order 1

Order Details: Notice of Motion
Pdf Text: NM No.4167/2019 L.C. Suit No.1587/2009
CNR No. MHCC010114262019
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO. 4167 of 2019
IN
L.C. SUIT NO. 1587 OF 2009
Ram Maloji Walekar )
son of Maolji Walekar aged 56 years )
Occupation : Business, residing at )
Municipal House No.162D, Jai )
Bhavani Sadan, Ganpatrao Kadam )
Marg, Lower Parel, Mumbai 400 013 )...Plaintiff
Vs.
1. Municipal Commissioner )
Brihanmumbai Mahanagarpalika, )
Mahapalika Marg, Mumbai 400 001 )
2. The Assistant Engineer )
(Building and Factory Department) )
Municipal Corporation of Greater )
Mumbai, GSouth Ward, N.M. Joshi )
Marg, Mumbai 400 013. )...Defendants
APPEARANCE:
Ld. Adv. Wasim Ansari for the plaintiff.
Ld. Adv. Kumawat for the defendants/MCGM.
CORAM : HER HONOUR ADHOC JUDGE
SMT.C.P. JAIN (C.R. NO.06)
DATED : 27th JANUARY, 2020.
O R D E R
This Notice of Motion No.4167/2019 is moved by plaintiff
praying to recall, quash and set aside the order dated 13.09.2019
thereby dismissing his notice of motion No.1132/2009 and to restore to
the file.
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2. In the affidavit filed in support of Notice of Motion, it is
averred by plaintiff that in long cause Suit No.1587/2009, he had filed
notice of motion No.1132/2009 for interim relief. On 22.07.2009, he
was granted adinterim relief and the defendants were restrained from
taking any action against the suit premises. The adinterim order was
continued from time to time. In meanwhile various supplemental and
appellate proceeding came to be filed. Due to aforesaid reasons and
some unavoidable circumstances, the notice of motion was adjourned
and could not be heard and finally decided. On 13.09.2019, the said
notice of motion was kept on arguments finally. However, the Ld.
advocate for plaintiff was busy in Hon'ble Bombay High Court in his
other two matters i.e. Suit No.2953/2012 before Hon'ble Justice Shri.
B.P. Colabawalla, and A.O. No.124/2019 before Hon'ble Justice Shri.
S.C. Gupte. Therefore, his advocate could not attend the aforesaid
notice of motion. He had orally requested for adjournment. However,
his request was rejected and the matter was posted on 01.11.2019 for
framing issues. However, plaintiff could not understand and was under
impression that matter is simplicitor adjourned on 01.10.2019 at 11.00
am. He accordingly informed his advocate. On 01.10.2019, his advocate
came to attend the matter. It revealed that the notice of motion was
dismissed for want of prosecution and the matter was adjourned to
01.11.2019. His advocate informed him and called him to take further
steps. However, on account of festive season of "Navratri" he told his
advocate that he would be able to come only after "Dasshera". After
Dasshera, due to exigencies and unavoidable circumstances, he could
not get time to meet his advocate. On 22.10.2019, he met his advocate,
who informed him that from 23.10.2019 till 31.10.2019 he will be out
of Mumbai and therefore only on 01.11.2019 the notice of motion can
be moved. Accordingly, present notice of motion is moved on
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01.11.2019. If his notice of motion is not allowed, he will suffer
irreparable loss. On 13.09.2019, matter could have been kept back by
the Hon'ble Court thereby giving opportunity to plaintiff to call his
advocate and request him to make some arrangement. The impugned
order is passed in Mechanical manner. Therefore, he prayed for
allowing his notice of motion.
3. Defendants have resisted the aforesaid notice of motion by
filing their reply. According to them, the notice of motion do not
disclose any cause of action. Plaintiff is enjoying the interim injunction
order since 2009. He is prolonging on various grounds the hearing of
the notice of motion. On 26.10.2018, the plaintiff was given last chance
to argue on notice of motion hearing and the matter was posted on
03.12.2018. However, on 03.12.2018 so also on next date i.e.
15.12.2018, the matter remained on dismissal of notice of motion. This
court had granted two last chances to plaintiff and thereafter the matter
was adjourned for six times and lastly on 13.09.2019. As plaintiff failed
to argue, the court had correctly dismissed the notice of motion
No.1132/2009. Plaintiff was given sufficient opportunity of hearing.
Without any cause, plaintiff has taken adjournment for ten years
enjoying interim protection which shows malafide intention of plaintiff.
Plaintiff has not explained every day's delay. No satisfactory reasons or
supporting documents are tendered. Plaintiff has not come in court with
clean hands. Therefore, they prayed for dismissing the notice of motion.
4. Heard both the learned advocates. Perused the proceeding.
Both the learned advocates have argued in lines of the pleadings in the
notice of motion and reply filed on record. Ld. advocate for plaintiff has
further relied upon the observations in the case of G.P. Shrivastava
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V/s. R.K. Raizada & Ors. (2000) 3 SCC 54 and Rajinder Tiwari V/s.
Kedar Nath AIR 2019 Supreme Court 1659.
5. I have given anxious consideration to arguments of both
the learned advocates. The roznama in the L.C. Suit No.1587/2009
reflects that the plaintiff had obtained adinterim order in year 2009.
Thereafter, on various grounds the matter is adjourned and adinterim
order is extended from time to time. It further appears that since
07.06.2019 till date of dismissal of notice of motion i.e. 13.09.2019, it is
plaintiff who had sought adjournments for arguing the notice of motion.
Therefore, the arguments of Ld. advocate for defendants that plaintiff is
enjoying adinterim protection without arguing his notice of motion has
merits. Since last ten years i.e. year 2009 till 2019, the notice of motion
No.1132/2009 is pending for hearing. Despite directions and last
chance given to plaintiff, plaintiff has sought adjournment from
07.06.2019 till 13.09.2019.
6. It is observed in the cited case of G.P. Shrivastava that
"the previous negligence has to be over looked as
condoned earlier. Sufficient cause for nonappearance
refers to the date on which the absence was made a
ground for proceeding exparte. It cannot be stretched to
cover circumstances occurring prior to that date."
7. In light of aforesaid observations, as plaintiff was granted
time by giving directions and last chance, same cannot be considered
i.e. same has to be overlooked while deciding present notice of motion.
8. On perusal of roznama, it is revealing that on 13.11.2019
plaintiff had orally requested for adjournment on the ground that his
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advocate was busy in Hon'ble Bombay High Court. As since 07.06.2019
till 13.09.2019 plaintiff and his advocate were given directions and last
chance, my predecessor in office had dismissed the request of plaintiff
and dismissed the notice of motion No.1132/2009 for want of
prosecution.
9. The fact that Ld. advocate for plaintiff was busy in Hon'ble
Bombay High Court is substantiated by him by filing the cause list of
Bombay High Court. They reflect that Ld. advocate for plaintiff was
having other matters before Hon'ble Justice Colabawala and Hon'ble
Justice S.C. Gupte i.e. Suit No.2953/2012 and AO No.124/2019
respectively.
10. The absenty of Ld. advocate of plaintiff on 13.09.2019 is
substantiated as the aforesaid documents relied upon by Ld. advocate
for plaintiff are not discredited by any other evidence on record.
11. However, plaintiff has not diligently moved for recalling
the aforesaid order dated 13.09.2019. The reasons given in the notice of
motion are that plaintiff could not understand and was under
impression that matter is simplicitor adjourned on 01.10.2019 at 11.00
am. He accordingly informed his advocate. On 01.10.2019, his advocate
came to attend the matter. It revealed that the notice of motion was
dismissed for want of prosecution and the matter was adjourned to
01.11.2019. His advocate informed him and called him to take further
steps. However, on account of festive season of "Navratri" he told his
advocate that he would be able to come only after "Dasshera". After
Dasshera, due to exigencies and unavoidable circumstances he could
not get time to meet his advocate. On 22.10.2019 he met his advocate,
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who informed him that from 23.10.2019 till 31.10.2019 he will be out
of Mumbai and therefore only on 01.11.2019 the notice of motion can
be moved.
12. If the averments in notice of motion are taken as it is, what
it reflects is that plaintiff upon been informed by his advocate was not
diligent in moving this present notice of motion to recall the order
dated 13.09.2019. Even if the festival of "Navratri" was going on, it
cannot be imagined that plaintiff cannot give instructions or cannot
meet his advocate. The further averments in present affidavit filed in
support of notice of motion that even after the "Dasshera" due to some
exigency and unavoidable circumstances, he could not meet his
advocate are not explained on record. What were exigencies and
unavoidable circumstances are not pleaded or substantiated on record.
When notice of motion bearing No.1132/2009 was dismissed, it is but
natural that plaintiff will have anxiety and should be most diligent to
move to set aside and recall the order of dismissal. However, the
conduct of plaintiff is not reflecting any such anxiety or diligency. His
further averments in notice of motion that when he met his advocate,
he told him that he will be out of Mumbai from 23.10.2019 to
31.10.2019 and therefore notice of motion was moved on 13.10.2019
are also not appearing convincing and believable. Similarly, the
averments in notice of motion that plaintiff could not understand the
correct date and misunderstood the business happened on 13.09.2019
in court is also not digestible. Plaintiff appears to be businessman from
the cause title of the plaint. Since year 2009 till 2019 plaintiff is
attending the court. Therefore, the averments in notice of motion that
he misunderstood the order and the date and therefore wrongly
informed his advocate etc. are hardly digestible.
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13. It is observed in paragraph No.7 of the cited case of G.P.
Shrivastava relied upon by plaintiff that
"In a case where the defendant approaches the court
immediately and within the statutory time specified, the
discretion is normally exercised in his favour, provided
the absence was not malafide or intentional."
14. In light of these observations also, in order to invoke
discretion of this court, plaintiff has to show that he had approached the
court immediately and within statutory time specified and that there are
no malafides or the delay is unintentional.
15. If the aforesaid discussion of not filing the present notice of
motion within time that is grounds of Navratri Festival and unexplained
exigencies and unavoidable circumstances as pleaded by plaintiff are
taken into account, they are not convincing that plaintiff has
approached the court immediately and within the statutory time
specified. The aforesaid reasons are not convincing to invoke the
discretion vested in the court. The aforesaid conduct of plaintiff is not
inspiring confidence that the reasons made out in the notice of motion
are unintentional and bonafide. On the contrary, the conduct of plaintiff
as is revealing from the averments in the notice of motion is clearly
reflecting the negligence, inaction and casual approach on part of
plaintiff. He has taken it granted the business of court. Therefore, the
averments in notice of motion that there is bonafide and unintentional
delay in moving the notice of motion is not inspiring confidence. The
notice of motion No.1132/2009 was dismissed on 13.09.2019. Neither
on same date nor after taking as it is averments in notice of motion of
getting knowledge only on 01.10.2019, plaintiff failed to immediately
approach the court. Therefore, I cannot accede with arguments of Ld.
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advocate for plaintiff. I countenance arguments of Ld. advocate for
defendant. The notice of motion moved by plaintiff do not satisfy that
there was sufficient cause to condone delay. Consequently the prayer of
plaintiff to set aside order dated 13.09.2019 & to restore the suit also
fails. The notice of motion therefore deserves to be dismissed.
Therefore, I proceed to pass following order.
ORDER
1. Notice of Motion No.4167/2019 is dismissed.
2. Costs in cause.
3. Notice of Motion No. 4167/2019 is accordingly disposed of.
(C.P. Jain)
Adhoc Judge, (C.R.No.06)
Date : 27.01.2020 City Civil Court, Gr. Bombay
Dictated on :27.01.2020.
Transcribed on :28.01.2020.
Signed on :30.01.2020.
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE AND TIME : 31.01.2020, 12.33 pm.
NAME OF STENOGRAPHER : Mr. Harshal D. Jagtap
Name of the Judge (With Court
Room No.)
HHJ Smt. C.P. Jain
C.R. No.06
Date of Pronouncement of
JUDGMENT/ORDER
27.01.2020
JUDGMENT/ORDER signed by
P.O. on
30.01.2020
JUDGMENT/ORDER uploaded on 31.01.2020
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