Quashed

M/S. Sai Kripa Co-Op.Hsg. Soc.Ltd. v. the Municipal Corporation for Gr. Mumbai and Anr.

Bombay HC12 Jul 2007WP/4606/2007

Case brief

AI extract

What is this about?

The High Court quashed the Principal Judge, City Civil Court's order dismissing Notices of Motion for default restoration and stay of possession under section 105B BMC Act. The appeal was restored to the Principal Judge's file.

What did the court decide?

Impugned order quashed; Misc. Appeal No. 26/05 and Notice of Motion No. 3015/2007 restored to file; Rule made absolute.

M/S. Sai Kripa Co-Op.Hsg. Soc.Ltd. Vs the… — Civil Procedure and Limitation | Bombay HC (2007)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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 CIVIL APPELLATE JURISDICTION

¶3

 WRIT PETITION NO.4606 OF 2007

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 M/s.Sai Kripa Co-op. Hsg. Soc. Ltd. ..Petitioner.

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 V/s.

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 The Municipal Corpn. for Gr.Bombay & Anr. ..Respondents.

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 Mr.R.A.Thorat for petitioner.

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 Mr.A.J.Bhoir for respondents.

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CORAM : J.P.DEVADHAR, J.

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DATED : 12TH JULY, 2007.

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P.C. :-

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 1. Heard learned counsel for the parties. Rule,
 returnable forthwith. By consent of the parties the
 petition is taken up for final hearing.

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 2. Against the order passed by the Enquiry
 Officer, under section 105B of the Bombay Municipal
 Corporation Act on 25th August, 2004, the petitioner had
 filed an appeal being Misc. Civil Appeal No.26 of 2005
 before the Principle Judge, City Civil Court, Mumbai. The
 said appeal was dismissed for default on 12th January,
 2007. The petitioner took out a Notice of Motion No.336
 of 2007 for restoration of appeal and Notice of Motion
 No.3015 of 2007 for stay of issuance of warrant of
 possession. By the impugned order dated 5th June, 2007
 the learned Principle Judge of the City Civil Court,

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 - =: 2 := -

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 Bombay dismissed both the Notices of Motion on the ground
 that there is no provision to take out Notice of Motion in
 appeal proceedings arising out of eviction order passed
 under section 105-B of the Bombay Municipal Corporation
 Act.

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 3. It is well settled in law that the Court or
 Tribunal can set aside an ex-parte order with a view to do
 justice, even though the rules do not expressly provide to
 that effect. For example, in the case of J.K. Synthetics
Ltd. V/s. Commissioner of Central Excise reported in
1996 (6) S.C.C. 92, the Apex Court held that the Tribunal
 has power to restore an appeal dismissed for default even
 though the rules do not expressly provide for restoration
 of the appeal.

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 4. In this view of the matter, the impugned order
 dated 5th June, 2007 passed by the principal Judge, Bombay
 City Civil Court at Bombay is quashed and set aside and
 Misc.Appeal No.26/05 is restored to the file of the
 Principle Judge, City Civil Court, Bombay. Similarly, the
 Notice of Motion No.3015 of 2007 is also restored.

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 5. Accordingly, Rule is made absolute in terms of
 prayer clause (b) with no order as to costs.

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 - =: 3 := -

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 (J.P. DEVADHAR, J.)

M/S. Sai Kripa Co-Op.Hsg. Soc.Ltd. v. the Municipal Corporation for Gr. Mumbai and Anr.

Case brief

What is this about?

What did the court decide?

M/S. Sai Kripa Co-Op.Hsg. Soc.Ltd. v. the Municipal Corporation for Gr. Mumbai and Anr.

Case brief

What is this about?

What did the court decide?

What the court decided

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