Sheth Naresh KhantilalVsMunicipal Corporation of Greater Mumbai and Anr. +1 more

Date: 13-06-2023
Business: Court is on leave.
Matter  adjourned on 08.08.2023
Next Purpose: DIRECTIONS
Next Hearing Date: 08-08-2023

Date: 08-08-2023
Business: None present for plaintiff.
Adv Reshma Salunkhe  for def No. 2 present.
Advocate Mhatre for defendant No.1/BMC present and seeks time to file reply to NM and WS.
Adjd to  19.10.2023  for NM Reply and WS of Def-1
Next Purpose: NM REPLYREJOINDER
Next Hearing Date: 19-10-2023

Date: 19-10-2023
Business: None present for plaintiff
Adv. S.T. Manik for deft No. 2 present.
Advocate Mhatre for defendant No.1/BMC present and seeks time to file reply to NM. Time is granted.
Adv for deft No. 2 submitted that deft No. 2 is not served with writ of summons and it is mandatory to serve writ of summons. Hence, there is no delay in filing WS. None present for plaintiff. Plaintiff has not produced on record writ of summons. Hence WS of deft No.2 TOR marked as Exh. 4. copy supplied to deft/BMC and copy of plaintiff kept in R & P
Adjd  to    18.01.2024  for NM Reply  by deft No. 1/BMC
Next Purpose: NM REPLYREJOINDER
Next Hearing Date: 18-01-2024

Date: 18-01-2024
Business: As Court is busy in judgment in Suit No. 1767/17 and other NM Order, Board is discharged, hence matter adjourned.
Adjd  to 12.03.2024   for NM Reply
Next Purpose: NM REPLYREJOINDER
Next Hearing Date: 12-03-2024

Date: 12-03-2024
Business: PO is on leave, hence board is discharged and matter is adjourned.
Next Purpose: NM REPLYREJOINDER
Next Hearing Date: 27-06-2024

Date: 27-06-2024
Business: None present for plaintiff.
Advocate Waghmare for defendant No.1/BMC present and seeks time to file reply to NM. Time is granted.
Adv. Reshma Salunkhe for D-2 present.
Adjd  to  24.09.2024   for  NM Reply and service of writ of summons.
Next Purpose: NM REPLYREJOINDER
Next Hearing Date: 24-09-2024

Date: 24-09-2024
Business: None present for plaintiff.
Advocate   Nagarthawar   for defendant No. 1/BMC present and seeks time to file reply to NM No. 4853/2022. Time is granted.
Adv. Reshma Salunkhe for deft No. 2 present.
Plaintiff to tender NM No. 4853/2022 on next date.
Adjd  to  17.12.2024   for   NM Reply by deft/BMC.
Later on 3.47 p.m.
Adv  Salunkhe for deft No. 2 tendered draft Notice of Motin @ affidavit in support
O- Leave granted to register NM. Copy be supplied to other side.
Already Adjd  to  17.12.2024   for   NM Reply by deft/BMC.
Next Purpose: NM REPLYREJOINDER
Next Hearing Date: 17-12-2024

Date: 24-09-2024
Business: None present for plaintiff.
Advocate   Nagarthawar   for defendant No. 1/BMC present and seeks time to file reply to NM No. 4853/2022. Time is granted.
Adv. Reshma Salunkhe for deft No. 2 present.
Plaintiff to tender NM No. 4853/2022 on next date.
Adjd  to  17.12.2024   for   NM Reply by deft/BMC.
Later on 3.47 p.m.
Adv  Salunkhe for deft No. 2 tendered draft Notice of Motin @ affidavit in support
O- Leave granted to register NM. Copy be supplied to other side.
Already Adjd  to  17.12.2024   for   NM Reply by deft/BMC.
Next Purpose: NM REPLYREJOINDER
Next Hearing Date: 17-12-2024

Date: 17-12-2024
Business: Advocate Vimal Tiwari h/f M.S. Singh for plaintiff present.
Advocate  Swapnil Bharti for defendant No. 1/BMC present and seeks time to file reply to NM. Time is granted.
Adv. Reshma Salunkhe for deft No. 2 tendered NM No.
5446/24. copy is supplied to other side.
Adjd  to  28.01.2025  for NM Reply
Next Purpose: NM REPLYREJOINDER
Next Hearing Date: 28-01-2025

Date: 28-01-2025
Business: None present for the plaintiff to tender registered NM. Hence, the draft NM is posted for dismissal. He is also absent to file reply on NM No. 5446/2024. Hence, it is proceeded without his reply. Adv. Ms. Pooja Nagarthwar for defendant No.1/MCGM is present and sought time to file reply. Time is granted. Adv. Ms. Reshma Salunkhe for defendant No.2 present.
Adjourned for NM dismissal/NM hearing (No reply) to 06-03-2025.
Next Purpose: NM REPLYREJOINDER
Next Hearing Date: 06-03-2025

Date: 06-03-2025
Business: CORAM : H.H.J. SHRI. A.G. SANTANI (C.R. No. 04)
None present for the plaintiff. Adv. Ms. Sujata Puri h/f Adv. Ms. Pooja Nagarthawar for defendant No. 1/MCGM is present. Adv. S.T. Manek  Manek for defendant No. 2  is present. Heard both the sides on NM, filed by defendant No.2. He submitted that the structure is demolished and therefore, the suit may be disposed of.
Adjourned for NM dismissal/NM Order to 03.04.2025.
Next Purpose: NM  ORDERS
Next Hearing Date: 03-04-2025

Date: 03-04-2025
Business: CORAM : H.H.J. SHRI. A.G. SANTANI (C.R. No. 04)
None present for the plaintiff to tender registered NM, even after specific directions. Hence, un-tendered registered NM No. 4853 of 2022 stands dismissed in default. The plaintiff is directed to tender registered NM positively till the next date. Adv. Ms. Pooja Nagarthawar for defendant No. 1/MCGM is present. Adv. Ms. Reshma Salunkhe h/f Adv. Mr. S.T. Manek for defendant No. 2 is present. The matter is kept back at 5.00 pm for NM Order.
Later on at 5.00 pm
Barring appearance for defendant No. 1, rest of the parties are absent.
Following Order is passed in Notice of Motion No. 5446 of 2024.
1.	By this Notice of Motion (the NM), defendant No.2 asked for rejection of the plaint or pronouncement of Judgment, U/O. VII R. 11 or U/O. XV R.1 of the CPC. The plaintiff didn’t prefer to contest this NM. The only anxiety of the plaintiff to file this NM is to bring on record TAC already passed the reasoned Order dtd 18.01.2018. This suit was filed only after confirmation of the Order in NM No. 308/2020, in SU No. 387/2014, which was confirmed by the Order dtd. 04.05.2022, in AO No. 467/2022. Accordingly, the plaintiffs as well as the other tenants of the building vacated their premises. In  November, 2022, the entire process of demolition was completed and the said building is demolished. Thus, the suit does not survive and it needs to be rejected or disposed of.
2.    Needless to say that in view of the grounds raised the NM, the plaint can not be rejected or disposed of, as prayed for. Simply, as there is no reason to conclude the said position of record. As such,  reliance of defendant No. 2 on the aforesaid provisions is totally misplaced. However, it is equally true that in SU No. 387/2014, the said Order on NM No. 308/2022 was also maintained in the said AO, by virtue of the Order dtd, 04.05.2022. On this backdrop, the suit relief, more precisely prayer clause (a) does not survive for any consideration. Further, in view of this NM and the documents filed as per affidavit in support of list of documents (Exhibit 3), it seems that even the earlier Survey list was duly prepared by the Office of defendant No. 1. It was also observed in the Order dtd. 29.11.2022 of this Court. Being so, even the reliefs, claimed in clause (a) and (c) of the plaint, do not survive for consideration. Thus, it is clear that the suit has become infructuous and hence, it may be disposed of accordingly. For this proposition, helpful reliance may be placed in case of Shipping Corporation of India Ltd. Vs. Machado Brothers (2004) 11 SCC 168. In this case, the Hon'ble Apex Court held that the Court has to take into consideration the subsequent event if the proceeding has become infructuous and it will be duty of the Court to take such action as is necessary in the interest of justice, which includes disposing of infructuous litigation and such application is maintainable U/s. 151 of the CPC. However, by this NM, the said powers are not called for, which is mainly for rejection of the plaint or pronouncement of judgment. Hence, before disposing of the suit being infructuous, the plaintiff may be called to fortify his claim as regards prayer clauses (b) and (c) of the plaint. On this backdrop, the NM needs to be disposed of as filed. Therefore, the Order :
1.	Notice of Motion No. 5446/2024 stands filed. The plaintiff is 	directed to argue on survival of the suit, specially after 	demolition of the structure.  In default, the suitable Orders 	would follow.
2.	Notice of Motion No. 5446/2024 is, accordingly, disposed of.
Adjourned for steps/hearing on survival of the suit to 17.06.2025.
Next Purpose: FOR TAKING STEPS
Next Hearing Date: 17-06-2025

Date: 17-06-2025
Business: CORAM : H.H.J. SHRI. A.A LAULKAR (C.R. No. 04)
None present for plaintiff.
Adv. Ms. Pooja Nagarthawar for defendant No.1/MCGM is present.
Adv. Sanjay T. Manek for defendant No.2 present.
Adjourned for order to 24.06.2025
Next Purpose: ORDER
Next Hearing Date: 24-06-2025

Date: 24-06-2025
Business: CORAM : H.H.J. SHRI. A.A LAULKAR (C.R. No. 04)
None present for the plaintiff. Adv. Ms. Pooja Nagarthawar for defendant No. 1/MCGM is present.
Adv. Ms. Reshma Salunkhe i/b Adv. Mr. S.T. Manek and Co.  for   defendant No. 2 is present.
keep back
Later on at 11.58 a.m
None present for the plaintiff. None present for defendant No. 2
Rest of the appearance is same.
Order Below Exhibit No. 01:
       Today, the plaintiff is absent to proceed with the matter. On last occasion he was specifically directed to highlight on the issue of survival of the suit specially in the light of Order passed in NM dtd. 03.04.2025.  It is apparent that demolition of suit structure has left with nothing for survival of cause of action. Despite such position, neither plaintiff nor his Advocate turned up to the Court to proceed with the suit. I believe, they are not interested to pursue present suit positively. Even no any Order is pinpointed there by showing stay to present proceeding. There is no reason to postpone present suit on next date for the same purpose. I deem fit necessary to dispose of the suit to prevent the abuse of the process of the Court. Thus, it is necessary to pass suitable Order for the ends of justice. Hence, the suit stands dismissed Vide Section 151 of the Code of Civil Procedure, 1908. All the pending applications are filed. He is called upon to bear the costs of the litigation. Bill of costs be drawn-up accordingly.
 	The Original documents, if any, filed on record be returned to the respective parties, on their submitting its Certified Copies, if the documents are exhibited, or Self-attested True Copies, if the documents are not exhibited, along-with undertaking to furnish the originals as and when required by the Court. The concerned Department to do the needful. The proceeding is closed.
Nature Of Disposal: DISMISSED
Disposal Date: 24-06-2025

NOTICE OF MOTION/105446/2024

Filing Number: 113188/2022
Filing Date: 25-11-2022
First Hearing Date: 13th June 2023
Decision Date: 24th June 2025
Court Number And Judge: 4-COURT 04 ADDL SESSIONS JUDGE