Final Order 1

Order Details: Notice of Motion
Pdf Text: CNR NO. MHCC01-012892-2019. Notice of Motion No.4728/2019
in L.C. Suit No. 3319/2014.
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
NOTICE OF MOTION NO. 4728 OF 2019
IN
L.C. SUIT NO. 3319 OF 2014.
Mohd. Nizam Khan. …....................………….. …. PLAINTIFF.
V/s.
Sayyed Shamim +2. ........................................ …. DEFENDANTS.
CORAM : SHRI. A.G. SANTANI.
(Court Room No.11).
DATED : 21st April, 2023.
APPEARANCES :
Mr. S.P. Shrivastav, Ld. Advocate for the Plaintiff.
Mr. Hamid Ahmed, Ld. Advocate for the Defendant Nos. 1 and 2.
Mr. S. C. Khandagale, Ld. Advocate for the Defendant No. 3/MCGM.
01. Defendant Nos.1 and 2 have taken out the Notice of Motion
(for the brevity the NM), for setting aside the Order of dtd. 22.03.2018,
proceeding the suit 'without their written statement' and for permission
to file their defence on record. Perused the NM, accompanying affidavit
of defendant No.1 and reply of the plaintiff. Heard both the sides.
02. Considering the record, the point for determination, along -
with my finding and the reasons therefor, are as under :
Sr. No. POINTS FINDINGS
(i). Whether the Order of dtd. 22.03.2018
is to be set-aside?. …............................. … Yes.
(ii). What Order ? …..............…...................… As per final Order.
-: REASONS FOR THE FINDINGS :-
AS TO POINT NO. 1 :
03. By this NM, defendant Nos. 1 and 2 contended that firstly,
they were served with writ of summons on 20.01.2015 and thereafter, it
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CNR NO. MHCC01-012892-2019. Notice of Motion No.4728/2019
in L.C. Suit No. 3319/2014.
took some time at their end to collect the documents for preparation of
their written statement. Even, defendant No.1 was having some medical
issues and had to undergo knee replacement surgery. They are having a
good case on merit. Moreover, the delay, in filing the written statement,
was not deliberate. As such, the said Order, proceeding the suit without
their written statement, may be set-aside and they may be permitted to
contest this suit. Their presence is necessary for effective adjudication of
this suit. The plaintiff resisted this NM as misconceived. Defendant No.
1 didn't come before the Court with clean hands. Further, even after due
service of writ of summons, sufficient opportunity was already granted
to them. The delay on their part is not sufficiently explained and hence,
the NM is liable to be dismissed.
04. Having considered the rival stands, it is notable that by this
suit, the plaintiff assailed the construction carried at the suit premises,
by defendant Nos. 1 and 2, as illegal and prayed for the reliefs in form
of a declaration, perpetual injunction and the other ancillary reliefs. The
record shows that even after affording of the ample opportunities, they
failed to file their written statement and hence, on 22.03.2018, the suit
proceeded ahead without their defence. However, it is equally true that
even passing of the said Order, there could be no substantial progress in
the matter. Nor, any vital rights accrued in the plaintiff’s favour. That
apart, defendant No. 3 did not bother to contest this suit. Consequently,
as the suit reliefs are mainly claimed against defendant Nos. 1 and 2, I
am of the opinion that their contest to the suit is absolutely necessary. I
do agree there are latches on their behalf to file their written statement
and considering this NM in their favour would delay the trial. However,
still, it would be appropriate to afford one more chance to them to have
a full fledged trial on merits. Surely, while doing so, it would be just to
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CNR NO. MHCC01-012892-2019. Notice of Motion No.4728/2019
in L.C. Suit No. 3319/2014.
some costs upon them to mitigate inconvenience caused to the plaintiff.
Hence, I answered point No.1 the affirmative and in the answer to point
No. 2, I pass the following Order :
-: O R D E R :-
(i). Notice of Motion No. 4728/2019 is made absolute
in terms of prayer Clause (a) and (b) only, subject to
payment of costs of Rs. 2,000/- (Rs. Two Thousand), to
the plaintiff, till the next date.
(ii). On the payment of costs, defendant Nos. 1 and 2 are
directed to proceed with the matter, without further delay.
(iii). Notice of Motion No. 4728/2019, accordingly, stands
disposed of.
{A.G. Santani}
Mumbai. Judge,
Dated : 21.04.2023. City Civil Court, Mumbai.
Dictated on : 21.04.2023.
Transcribed on : 27.04.2023.
Checked and Signed on : 29.04.2023.
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CNR NO. MHCC01-012892-2019. Notice of Motion No.4728/2019
in L.C. Suit No. 3319/2014.
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME
03.05.2023 at 10.45 a.m.
Name of the Stenographer
Mrs. S.R.Mejari
Name of the Judge (with Court Room No.) HHJ Shri A.G.Santani
(Court Room No.11).
Date of Pronouncement of Judgment/Order 21.04.2023.
Judgment/Order signed by P.O. on 29.04.2023.
Judgment/Order uploaded on 03.05.2023.
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