Order 2

Order Details: Order on Exhibit
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(CNR No.MHSCA3-000971-2022)
IN THE COURT OF SMALL CAUSES AT MUMBAI
(BANDRA BRANCH)
ORDER BELOW EXHIBIT NO.7
IN
MARJI APPLICATION NO.89 OF 2022
IN
EXECUTION APPLICATION NO.25 OF 2019
IN
L.E.&.C. SUIT NO.14 OF 2019
Mr. Shabbir Abdul Rehman Shaikh ... Applicant
(Org.Defendant
No.3)
Versus
1. M/s. Gitaneel Hotel Pvt. Ltd. … Respondent
No.1
(Org. Plaintiff)
2. M/s. Snob Diner Lounge Bar
and others ... Respondents
(Org. Defendants)
Shri. Dinesh R. Pandey, Learned Advocate for the applicant.
Shri. Salik Khan, Learned Advocate for respondent No.1.
Coram : Shri. A. J. Fatale, Judge.
C.R.No.34 (BB).
Date : 26.09.2023.
ORAL ORDER :-
1. Perused the application, say filed by applicant and
record.
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2. Heard Advocates of both parties.
3. Present application is filed by Advocate of
plaintiffs/respondent No.1 to set aside order dated 06.03.2023
passed below Exhibit No.1 and to allow plaintiffs to file reply to the
MARJI application It is contended by plaintiffs/respondent No.1 that
in this matter notice was issued on 26.06.2022. Affidavit-in-reply of
respondent No.1 was ready, but due to unavoidable reasons the same
could not be signed and filed on 06.03.2023. Affidavit-in-reply of
respondent No.1 dated 08.03.2023 is annexed along with present
application. Respondent No.1 has very good case on merits. Grave
and irreparable loss will be caused to respondent No.1 in the event of
rejection of application. Hence, respondent No.1 prayed to allow the
application.
4. Applicant has filed say vide Exhibit No.9 and opposed
the application. It is contention of applicant that no sufficient cause
is made out for recalling of order dated 06.03.2023. Application is
filed by Advocate, who is not party, therefore, application be
dismissed with costs. Respondent No.1 is owner and he has executed
the decree, therefore, question does not arise to awaiting appearance
and reply. MARJI Application No.89 of 2022 is not served to
respondent Nos.2 to 4 because applicant is not claiming any relief
against them. Respondent No.1 want to delay the matter because he
is not interested to proceed the matter and harass applicant. Lastly,
he prayed for rejection of the application with costs.
5. Perused the record and proceeding of the matter. It
appears from record that MARJI Application is filed by
applicant/original defendant No.3 for return of articles from
respondent No.1. Despite sufficient opportunity respondent No.1 not
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filed reply and hence, on 06.03.2023 order is passed below Exhibit
No.1 to proceed application without reply of respondent No.1. On
14.06.2023 respondent No.1/plaintiff filed present application for
setting aside order dated 06.03.2023. Respondent No.1 has filed
reply along with present application.
6. Considering the facts and circumstances of the case, in
my opinion opportunity requires to be granted to respondent
No.1/plaintiffs to file reply to MARJI application by setting aside the
order dated 06.03.2023. It also appears to me that no prejudice
would be caused to applicant in the event of allowing application.
Hence, I pass the following order:-
: ORDER :
1. Application is allowed.
2. Order dated 06.03.2023 that ‘application to
proceed without reply of respondent No.1’ is
hereby set aside.
3. Reply filed by respondent No.1/plaintiffs to
MARJI application is taken on record.
4. No order as to costs.
(A. J. Fatale)
Date : 26.09.2023 Judge, C.R.No.34(BB).
Order Dictated & Typed on : 26.09.2023
Order Checked & Signed on : 27.09.2023
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