Final Order 2

Order Details: Other
Pdf Text: 1 Review Petition No.281 of 2019
CNR:MHCC010127242019
IN THE BOMBAY CITY CIVIL C0URT AT BOMBAY
REVIEW PETITION NO.281 OF 2019
IN
NOTICE OF MOTION NO.3712 OF 2017
IN
L.C.SUIT NO.785 OF 2018
Aziz Majid Shaikh .. Petitioner/
Orig. Plaintiff
V/s.
1 Municipal Corporation of
Greater Mumbai & Ors. .. Defendants
Appearance:
Adv. Labde for petitioner Orig. plaintiff.
Adv. Tawakuli with Smt. Vidya Vyavahre for defendant/MCGM.
CORAM : HER HONOUR ADHOC JUDGE
SMT. A.H. KASHIKAR
CITY CIVIL COURT, GR. BOMBAY
(C.R. NO.05).
DATE : 16/02/2023
ORDER
1 By way of this Review Petition, the petitioner/plaintiff
seeks to recall and/or modify the order dt.14/11/2019 passed in Notice
of Motion No.3712 of 2017 in L.C. Suit No.785 of 2018.
2 It is argued by the petitioner/plaintiff that the notice of
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motion No.3712 of 2017 came to be rejected on dt.14/11/2019. After
pronouncement of said order and before filing of Appeal from Order,
the petitioner came across few documents such as IOD, Commencement
Certificate(CC) and Sanction Plan in respect of notice structure i.e.
Ground Floor, Aziz Compound, 11, Thana Street, Opp. Vibha Transport,
Dana Bundar, Masjid(E), Mumbai which clearly proves existence of
notice structure since 1958 and the petitioner has never extended said
structure on the street. Plaintiff received those documents through RTI
in the year 2012, but the same were mixed up with other old papers,
hence, he could not produce the same earlier.
3 It is stated that the structure is tolerated one and not
constructed on the Municipal Street. In the judgment/order, it is
observed that no notice is required to be given in the present case, but
Corporation has not followed the principles of natural justice before
demolishing notice structure. The structure is assessed and if it had
been on street, it could not have been assessed. It is argued that if these
points and documents are considered, no harm and injury will be
caused to the defendants.
4 Hence, petitioner prayed to recall the order dt.14/11/2019.
5 The defendant Corporation has filed reply to the petition
stating that there is no impugnity in the notice and order of defendants.
The documents produced by the plaintiff do not prove authenticity of
structure. In the order passed in Notice of Motion No.3712 of 2017 on
dt.14/11/2019, the defendants have considered all documents
submitted by the plaintiff. The defendants have obtained remarks of
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Assessment and Collection Department, 'B' Ward. From there it has been
clarified that unauthorised structure under consideration is newly
assessed as C.I. Shed ground floor area 240.49 sq. mtrs with effect from
01/06/2004. Hence, it is a structure having recent origin. It is further
contended that all documents now placed in record by plaintiff are
already available with plaintiff. Therefore, the due diligence of plaintiff
is not proved. Hence, there is no necessity to recall the order
dt.14/11/2019.
6 As it transpires from the record, this Court had passed
order on this Review Petition on dt.08/01/2020 and dismissed the same
with the reasons that the petition does not comply with the
requirements of Rule 1 of Order 47 of Code of Civil Procedure.
Therefore, review Petition is not tenable. However, petitioner preferred
Civil Writ Petition No.2206 of 2020 with interim Application No.26519
of 2022 for setting aside said order. Allowing said Writ Petition, Hon'ble
High Court held that plaintiff exercised due diligence and is
entitled/deserves to be given an opportunity. Hence, the order
dt.08/01/2020 stood set aside with direction to decide the Review
Petition a fresh.
7 To my mind, the plaintiff/petitioner has produced all
relevant documents on record which were not put forth when the notice
of motion came to be decided by this Court. It is evident from record
and as transpires from the order of Hon'ble High Court that there is
discovery of new and important matter or evidence which, after the
exercise of due diligence, was not within knowledge of petitioner and
therefore, said evidence could not be produced earlier. The documents
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may have bearing on the merits of the notice of motion.
8 Hence, considering the scope of Order 47(1) of Code of
Civil Procedure, I hold that petitioner has made out the case to review
the order on the basis of new documents produced on record. In said
circumstances, I hold that allowing petitioner for review of order
dt.14/1/2019, the Notice of Motion No.3712 of 2017 needs to be
decided on merit afresh in the light of documents recently placed on
record.
9 Accordingly, I proceed to pass following order.
ORDER
1 Review Petition for review of order dt.14/11/2019 passed
by this Court in Notice of Motion No.3712 of 2017 in the present suit is
allowed.
2 Order on Notice of Motion No.3712 of 2017 is passed
separately.
3 Review Petition No.281 of 2019 is disposed off.
Date:16/02/2023.
(A.H.KASHIKAR)
ADHOC Judge, City Civil Court,
Dictated on :16/02/2023. Gr.Mumbai.
Typed on :20/02/2023.
Signed on :23/02/2023.
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
06/03/2023 05.10 p.m. (Santosh B. Sawant )
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court room
No.)
HHJ Smt. A.H. Kashikar
(C.R.No.05)
Date of Pronouncement of
JUDGMENT/ORDER
16/02/2023.
JUDGMENT/ORDER signed by P.O.on 23/02/2023.
JUDGMENT/ORDER uploaded on 06/03/2023
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