Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM No.4641-2019 in LC SU 2191-2006
MHCC010127382019
IN THE BOMBAY CITY CIVIL COURT AT GREATER MUMBAI
NOTICE OF MOTION NO. 4641 OF 2019
in
L.C. SUIT NO.2191 OF 2006
Suhas Mahadev Rege & Others ]...Plaintiffs
Versus
MCGM & Others ]..Defendants
Appearance:
Ld. Advocate Shri. Chandranaik for plaintiffs.
Ld Advocate Mrs. Phiroza Irani for defendant Nos. 2 to 6.
CORAM : His Honour Judge &
Addl Sessions Judge.
Shri. K.P. Kshirsagar,
(Court Room no.5)
DATED : 5th JANUARY, 2022.
ORAL ORDER
1) Defendant Nos. 2 to 6 have taken out this notice of
motion for setting aside the order dtd. 13/11/2019 continuing the ad
interim earlier order till disposal of the suit.
2) Perused the notice of motion, affidavit in support thereof,
reply of the plaintiffs and record. Heard Ld Advocate for plaintiffs and
the Ld Advocate for defendant Nos. 2 to 6.
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2 NM No.4641-2019 in LC SU 2191-2006
3) The Ld Advocate for defendant Nos. 2 to 6 argued that as
per order dtd.10/5/2006 ad interim relief in terms of prayer clause
(a) of the draft notice of motion i.e. Notice of Motion No.1927/06
was granted till next date and from time to time it was continued till
13/11/2019. However, on 13/11/2019 without giving any
opportunity of hearing to defendant Nos. 2 to 6 court passed order
that earlier order to continue till disposal of suit which amounts to
grant of interim relief itself. Therefore, the above order needs to be
set aside and earlier order needs to be continued till next date only.
Therefore, Ld Advocate for defendant Nos. 2 to 6 prayed that notice
of motion be made absolute.
4) On the other hand, Ld Advocate for plaintiffs argued that
the remedy available to the defendants is appeal. The present notice
of motion is not tenable. As per order dtd.11/10/2017 it is directed
that notice of motion No.1927/06 be heard alongwith the suit.
Plaintiffs have filed their evidence. In the present suit and NM
No.1927/06 no relief is claimed against defendant Nos. 2 to 6.
Therefore, defendant Nos. 2 to 6 are not the aggrieved persons.
Defendant No.1 against whom the said order is passed has not
challenged the above order. Therefore, Ld Advocate for plaintiff
submitted to dismiss the notice of motion. Ld Advocate for plaintiffs
placed his reliance on the following citations:-
a) Rajaram V. Tarphe vs. Municipal Corporation of Greater Bombay,
Appeal from Order No.466/91 with Civil Appln No.2020/91 of
Hon’ble High Court of Bombay, dtd.12/6/91;
b) Dadysett Charity Trust & Ors vs Subhash Mahadev Roge & Ors,
Civil Revision Appln No.193/19 of Hon’ble High Court of Bombay,
dtd.29/11/21.
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3 NM No.4641-2019 in LC SU 2191-2006
5) Perusal of record reveals that plaintiffs filed the suit
originally against defendant No.1 corporation only and later on other
defendants were added as per order on Chamber Summons taken out
by them. Perusal of the plaint and notice of motion No.1927/06
reveals that plaintiffs have not claimed any relief against defendant
Nos. 2 to 6. Moreover, the ad interim order dtd. 10/5/2006 is also
against the defendant No.1 only and it appears that from time to time
it was continued till 13/11/2019. The defendant No.1 has not
challenged the order dtd. 13/11/2019 i.e. earlier order to continue
till disposal of the suit.
6) From the record prima facie it appears that on
13/11/2019 the Predecessor of this court passed the order that
earlier order is continued till disposal of the suit. Admittedly, it is
directed by the court as per order dtd.11/10/2017 that notice of
motion No.1927/06 be heard along with the suit. It also appears that
on 13/11/2019 plaintiffs also tendered their evidence on record and
matter is at the stage of recording evidence. The perusal of record
reveals that the ad interim order was blissfully inforce for a period of
last several years. The present notice of motion is not a review
petition. Defendant Nos. 2 to 6 also did not explain provision of law
under which relief claimed can be granted. Moreover, there appears
substance in the contention of the plaintiffs that defendants are
having remedy of preferring appeal against the said order. The
defendant Nos. 2 to 6 also prima facie failed to demonstrate as to
how the order dtd.13/11/2019 affected their rights or interest.
Therefore, the present notice of motion does not appear to be
maintainable.
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4 NM No.4641-2019 in LC SU 2191-2006
7) Considering peculiar facts and circumstances and matter
on record, the present notice of motion appears to be devoid of merit.
Therefore, Court proceeds to pass following order:-
ORDER
1) Notice of Motion No.4641/2019 is dismissed.
2) Notice of Motion No.4641/2019 is disposed off
accordingly.
Date:5/1/2022. (K.P. Kshirsagar)
Judge
City Civil Court
Gr. Bombay
Dictated & directly typed on dais computer :5/1/2022.
Checked by PO : 6/1/2022.
Signed by HHJ on : 6/1/2022.
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5 NM No.4641-2019 in LC SU 2191-2006
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
6/1/2022 Mrs. S.A. Shekade.
Name of the Judge (With Court room
no.)
SHRI K.P. Kshirsagar (Court Room
No.05)
Date of Pronouncement of
JUDGMENT/ORDER
5/1/2022
JUDGMENT/ORDER signed by P.O.
on
6/1/2022
JUDGMENT/ORDER uploaded on 6/1/2022
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