Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 Notice of Motion No. 4758/2019
CNR NO.: MHCC010130162019. in L.C. Suit No. 1300/2017.
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
NOTICE OF MOTION OF 4758 OF 2019.
IN
L.C. SUIT NO. 1300 OF 2017.
Nahar Builders Limited. …...........................…. …. PLAINTIFF.
V/s.
MCGM+1. ....................................................... …. DEFENDANTS.
CORAM : SHRI. A.G. SANTANI.
(Court Room No.11).
DATED : 18th July, 2022.
APPEARANCES :
Mr. Mohit Goyal, Ld. Advocate for the Plaintiff.
Mr. Sunil Khandagale, Ld. Advocate for Defendant No. 1/MCGM.
Ms. Asha Shah, Ld. Advocate for Defendant No. 2.
01. Defendant No.2 has taken out this Notice of Motion (for the
brevity 'the NM'), to set aside the Order dtd. 23.04.2019, for 'no written
statement'. Perused the NM, accompanying affidavit of defendant No. 2
and the record. 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 dtd. 23.04.2019 is
to be set-aside?. …................................ … Yes.
(ii). What Order ? …..............…...................… As per final Order.
REASONS FOR FINDINGS
AS TO POINT NO. 1 :
03. Having considered the rival submissions, at the outset, it is
to be noted that by filing this suit, the plaintiff prayed for directing the
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2 Notice of Motion No. 4758/2019
CNR NO.: MHCC010130162019. in L.C. Suit No. 1300/2017.
the defendants to demolish illegal structure of Room No. 9-A and also to
restrain defendant No.2 to carry out any alteration, extension or repairs,
etc. thereat. He also prayed for alternate relief, calling upon defendant
No. 1 to take action against the said structure. The record goes to reveal
that as the defendants failed to file their defence, the suit is proceeded
ahead in view of the Order dtd. 23.04.2019 and came to be posted for
the plaintiff's evidence. However, before he could lead his side, this NM
is preferred by defendant No. 2. As such, since passing of this Order of
'No Written Statement', there had been no progress in the matter and no
substantial rights could be accrued in the plaintiff's favour. Moreover, it
would be always better to have a trial on merits, rather to close it in the
mid way abruptly for any of the parties. Defendant No.2 could show his
bonafide to proceed with the matter by filing his written statement on
the record. In the circumstances, to adjudicate the suit issues effectively,
I am of the opinion that this NM is to be allowed. Therefore, I answered
point No.1 the affirmative and to answer point No.2, pass the following
Order :
-: O R D E R :-
(i). Notice of Motion No. 4758/2019 is made absolute in
terms of Clause (a) and (b). Consequently, the Order
dated 23.04.2019, proceeding the matter without
written statement of defendant No. 2, stands set aside.
(ii). Costs to follow the event.
(iii). Notice of Motion No. 4758/2019, accordingly, stands
disposed of.
Sd/-
{A.G. Santani}
Mumbai. Ad-hoc Judge,
Dated : 18.07.2022. City Civil Court, Mumbai.
Dictated on : 18.07.2022.
Transcribed on : 19.07.2022.
Signed on : 19.07.2022.
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3 Notice of Motion No. 4758/2019
CNR NO.: MHCC010130162019. in L.C. Suit No. 1300/2017.
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
20.07.2022 at 12.30 p.m. 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 18.07.2022
Judgment/Order signed by P.O. on 19.07.2022
Judgment/Order uploaded on 20.07.2022
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