Final Order 1

Order Details: Notice of Motion
Pdf Text: NM No.4637/2019 L.C. Suit No.512/2017
CNR No. MHCC01-012772-2019
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO. 4637 OF 2019
IN
NOTICE OF MOTION NO. 911 OF 2017
IN
L.C. SUIT NO. 512 OF 2017
Ms. Raziya lIghtwala )
Age -63 years Occupation – Housewife )
Residing at – Eveready House, )
Maulana Azad Road, Agripada, )
Mumbai – 400 008. ).. Plaintiff
Vs.
Municipal Corporation for Greater Mumbai )
A body corporate constituted under )
the Bombay Municipal Corporation Act- )
1988, having its Administrative office )
at – Mahapalika Marg, Fort, )
Mumbai – 400 001. )
...Defendant
APPEARANCE:-
Ld. Adv. Mr. Hrushikesh U. Damle for the plaintiff.
Ld. Adv. Mrs. Vidya Vyavahare for the defendant/MCGM.
CORAM : HER HONOUR AD-HOC JUDGE
SMT. C. P. JAIN (C.R.NO.06)
DATED : 28th FEBRUARY, 2020.
O R D E R
This Notice of Motion No.4637/2019 is taken out by
plaintiff praying to set aside the order of dismissing her notice of
motion No.911/2017 dated 19.07.2019 & to restore the notice of
motion No.911/2017 to its file.
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2. In the affidavit filed in support of Notice of Motion, it is
averred by plaintiff that on account of ill health of advocate for plaintiff
so also ill health of plaintiff, they could not remain present on
19.07.2019 in court. As they were absent, their notice of motion
bearing No.911/2017 was dismissed. According to plaintiff, there was
no other malafide reason in not remaining present in court on that day.
Therefore, plaintiff has moved this notice of motion.
3. Defendant has resisted the aforesaid notice of motion by
filing his reply overleaf. According to defendant, plaintiff instead of
proceeding with notice of motion had sought adjournments and
enjoyed the interim protection. Plaintiff is deliberately protracting the
suit. As plaintiff and her advocate were absent, the order passed on
19.07.2019 is proper and does not deserve to be set aside.
4. Heard both the learned advocates and perused the
proceeding. Both learned advocates have argued in lines of the
pleadings in the notice of motion and reply filed on record.
5. I have given anxious consideration to arguments of both
the learned advocates.
6. Plaintiff has affirmed on oath the reasons on account of
which she and her advocate were absent in court on 19.07.2019. There
is nothing on record to disbelieve the aforesaid reasons given in notice
of motion. There was interim protection granted in the notice of motion
No.911/2017 in favour of plaintiff. On account of dismissal of notice of
motion No.911/2017, plaintiff is now without protection. Plaintiff has
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challenged the notice dated 18.05.2016 issued by defendant u/sec.351
of BMC Act and the order dated 28.10.2016 in this suit. As plaintiff is
without protection, if defendant takes action in pursuance of notice
dated 18.05.2016 & order dated 28.10.2016, the whole purpose of
filing of the suit will frustrate. When no doubt is created in the
reasons in present notice of motion, plaintiff needs to be given
opportunity to get decided his notice of motion No.911/2017 on merits
which is in interest of both the parties. Therefore, plaintiff needs to be
given opportunity to contest her notice of motion in specific time span,
which will serve the purpose. Therefore, for aforesaid discussion, in the
interest of justice I proceed with following order-
ORDER
1. The Notice of Motion No.4637/2019 is hereby allowed subject to
costs of Rs.1,000/-(Rs. One Thousand Only) to be paid by
plaintiff to defendant on or before next date.
2. Upon depositing the costs as per clause (1) of this order, the
order of dismissal of notice of motion No.911/2017 dated
19.07.2019 passed against plaintiff shall stand set aside and the
notice of motion No.911/2017 shall be restored to its file.
3. The plaintiff shall get decided her notice of motion within 4
months of this order.
4. The Notice of Motion No.4637/2019 is accordingly disposed of.
(C.P. Jain)
Ad-hoc Judge, (C.R.No.06)
Date :28.02.2020. City Civil Court, Gr. Bombay
Dictated on : 28.02.2020.
Typed on : 28.02.2020.
Signed on : 29.02.2020.
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NM No.4637/2019 ..4 .. L.C. Suit No. 512/2017
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE AND TIME : 14.03.2020, 11.34 am.
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
28.02.2020
JUDGMENT/ORDER signed by P.O.
on
29.02.2020
JUDGMENT/ORDER uploaded on 14.03.2020
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