The Court dismissed a notice of motion seeking interim demolition orders. It held the application was not maintainable due to gross delay, no new cause of action, and failure to restore an earlier dismissed motion, thus rejecting the interim relief sought.
Motion stood dismissed; no order as to costs.
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
NOTICE OF MOTION NO.1061 OF 2006
IN
SUIT NO. 744 OF 2003
Mahabal Shetty ..Plaintiff
Vs.
Shakila Ansari and Anr ..Defendants
Mr.Manoj Prajapati i/b Ashoka Law firm for the
plaintiff
Mr.S.K.Dubey for defendant no.1
Mr.Swapnil Bangur i/b Kalpesh Nansi for defendant
nos.2 and 3
CORAM : S.U.KAMDAR, J
DATED : 7TH APRIL, 2006
P.C.:
1. By consent of the parties, motion made
returnable forthwith.
2. Heard the parties. Perused the affidavit.
3. Suit is filed on 13.2.03. An application
was made for interim order since 2003. The learned
Judge has ordered survey of the property. Survey
of the property is completed in 2004.
4. In respect of similar reliefs which are set
out in prayer clause (b), (c), (e) and (f), earlier
notice of motion was taken out by the plaintiffs
being notice of motion no.789 of 2003. By an order
dt.17.6.03 the said motion is dismissed for
default. In place of applying for restoration of
the said motion afresh, motion is taken out after 3
years seeking similar reliefs by adding additional
prayer that the structure on the said property
should be demolished.
5. On perusal of the affidavit it indicates
that there is no new cause of action arose for
taking out fresh notice of motion. In my opinion,
the present motion is thoroughly misconceived and
not maintainable. The remedy if any of the
plaintiffs was to apply for restoration of earlier
motion no.789 of 2003.
6. Apart from the aforesaid, no case is made
out on merits for grant of interim reliefs in the
present notice of motion. Even after survey is
carried out in 2004, there is no application made
for any interim injunction. After two years, first
time an application is made. There is a gross
delay. On both the aforesaid grounds, motion
stands dismissed. No order as to costs.
2 issues framed by the court
Whether a fresh notice of motion seeking an interim demolition order is maintainable given a gross delay and lack of new cause of action.
Whether interim reliefs should be granted following a significant delay in reaplication for similar reliefs.
Mahabal Shetty
Shakila Ansari
S.U.KAMDAR
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court