Interim Order 1

Order Details: Other
Pdf Text: 1 Review Petition No. 28119
IN THE COURT OF CITY CIVIL FOR GREATER BOMBAY
AT BOMBAY
REVIEW PETITION NO. 281 OF 2019
IN
NOTICE OF MOTION NO. 3712 OF 2017
IN
SUIT NO. 785 OF 2018
Aziz Majid Shaikh ….....Plaintiff
V/s.
The Municipal Corporation of Greater Mumbai & Ors. ..... Defendants
Coram : Sanjay N. Yadav, Judge
(Court Room no. 05)
Date : 08th January, 2020
Appearance:
Ld. Adv. Mr. Sandeep Sharma for the plaintiff.
Ld. Adv. Mrs. Rawade for defendant/MCGM.
ORDER
1. Heard Learned advocate for the plaintiff and advocate for the
defendant/MCGM.
2. The Notice of Motion No. 3712/2017 in L.C. Suit No. 785/2018
was dismissed by this Court vide order dated 14.11.2019. It is the case
of the plaintiff that the plaintiff had came across the documents like
IOD, Commencement Certificate and sanction plan showing the
existence of the notice structure since 1958. It is submitted that the
documents were received under the RTI by plaintiff in the year 2012 as
the documents were mixed with old papers. The plaintiff came across
the said documents. The plaintiff also had sought assessment
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documents by application dated 16.11.2019. It is submitted that
structure demolished does not fall on municipal street. He accordingly
prayed for review of the order passed on notice of motion.
3. Order 47 of the Code of Civil Procedure reads as under:
''(1) Any person considering himself aggrieved,
(a) by a decree or order from which an appeal is allowed, but
from which no appeal has been preferred,
(b) by a decree or order from which no appeal is allowed, or
(c) by a decision on a reference from a Court of Small Causes,
and who, from the discovery of new and important matter or evidence
which, after the exercise of due diligence, was not within his knowledge
or could not be produced by him at the time when the decree was
passed or order made, or on account of some mistake or error apparent
on the face of the record, or for any other sufficient reason, desires to
obtain a review of the decree passed or order made against him, may
apply for a review of judgment to the Court which passed the decree or
made the order.''
4. It was for the plaintiff to show that the discovery of new and
important matter or evidence which, after the exercise of due diligence,
was not within his knowledge or could not be produced by him. The
plaintiff had not pleaded in the review petition that inspite of due
diligence the documents sought to be tendered now were not within his
knowledge.
On the contrary, the documents now relied were collected by the
plaintiff under the RTI in the year 2012. The record of assessment now
is produced after finding the observations relating to assessment in the
order in the Notice of Motion. There is nothing to infer that after
exercise of due diligence, the documents were not within the knowledge
of the plaintiff. The documents and the fact sought to be brought on
record were in the knowledge of the plaintiff.
Rule 47 sub rule 2 provides that ''no application shall be granted
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on the ground of discovery the new matter or evidence which the
applicant alleges was not within his knowledge, or could not be
adduced by him when the order was passed or made, without strict
proof of such allegation.''
The contention in the application shows that the plaintiff had
knowledge of the documents as sought to be considered now.
There also do not appear any error apparent on face of record any
sufficient reason for review of order on Notice of Motion.
5. So also the plaintiff was expected to amend the plaint and was
required to incorporate the facts alleged in the review petition, so as to
made them the part of the pleadings.
Considering the facts, the application does not comply the
requirements of Rule 1 of Order 47. The review application is not
tenable.
In the result, following order is passed.
ORDER
The Review Petition No. 281/2019 is dismissed.
(Sanjay N. Yadav)
Judge,
Date : 08.01.2020 City Civil Court, Mumbai.
Dictated on : 08.01.2020
Transcribed on : 08.01.2020
Signed by HHJ on : 14.01.2020
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE AND TIME : 14.01.2020 at 5.35 p.m.
NAME OF STENOGRAPHER : Mrs. K.S.Bhosale
Name of the Judge (With Court
Room no.)
HHJ Shri. Sanjay N. Yadav
C.R. no. 05
Date of Pronouncement of
JUDGMENT/ORDER
08.01.2020
JUDGMENT/ORDER signed by
P.O. on
14.01.2020
JUDGMENT/ORDER uploaded
on
14.01.2020
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