Dismissed

The Municipal Corporation of Greater Mumbai and Ors. v. Rahul Developers, through Partner, Mr. Idris Khan and Ors.

Bombay HC30 Sept 2013WP/3957/2013

Case brief

AI extract

What is this about?

The High Court in Civil Appellate Jurisdiction dismissed a writ petition filed by the Municipal Corporation challenging the Bombay City Civil Court order accepting a suit for exparte hearing. The Court held the petition was incompetent in limine due to lack of prima facie case and undisputable delay.

What the court decided

AI extract

The Municipal Corporation of Greater Mumbai and Ors. Vs… — Specific Performance | Bombay HC (2013)

WP3957.2013

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.3957 OF 2013

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NOTICE OF MOTION NO.1074 OF 2012

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L.C. SUIT NO.2018 OF 2008

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The Municipal Corporation of Greater .... Petitioner Mumbai.

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Vs.

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M/s Rahul Developers & Ors.

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.... Respondents

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Mr. Suresh Pakale alongwith Mr. M.M. Malwankar i/by Mr. U.H. Kedar for Petitioner.

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Mr. Manoj A. Patil, Advocate for respondent no.1.

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Coram : Smt. R.P. SondurBaldota, J. Date : 30^th September, 2013.

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P.C.

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This petition is directed against the order dated 15^th

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September, 2012, by which the Bombay City Civil Court dismissed Notice of Motion taken out by the petitioner,

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Mumbai Municipal Corporation for setting aside the order dated 2nd September, 2009 recording that the suit would proceed for exparte hearing without the written statement of the petitioner. The Notice of Motion as well as the affidavit in support of the Notice of Motion does not even mention the date of the order to be set aside.

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Admittedly writ of summons was served upon the Municipal Corporation on 4^th November, 2009. Thereafter as no written statement was filed, the Bombay City Civil Court by it’s order dated 15^th September, 2012 directed the suit to proceed for exparte hearing. The other defendants to the suit are the State of Maharashtra and it’s officers, Special Land Acquisition Officer and the Secretary Department of Revenue. These other defendants have filed their written statement and are contesting the suit. Almost three years after the order of no written statement passed, the petitioner took out the Notice of Motion herein for setting that order aside. In the affidavit-in-support, the petitioner states that the action

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papers relating to subject matter of the suit got mixed up with

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some other matter, as a consequence of which, the written

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statement could not be prepared in time. The action papers

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having been traced out, the written statement was kept ready

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for filing. Mr. Pakale, the learned counsel for the petitioner submits that today the written statement is ready for filing. It

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is his request that the petitioner being a public institution, the Court should take a liberal view and permit the petitioner to file the written statement to contest the suit. He also submits

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that the subject matter of the suit is a vast piece of public land, presently in possession of the petitioner. Respondent no.1, the original plaintiff in it’s suit has sought declaration that the petitioner and other defendants have taken possession of excess land to the extent of 1,02,265.5 sq. mtrs. at survey No. 79, CTS No. 203, village Kanjur, District Mumbai to the land acquired by them and for possession of that land.

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Perusal of the affidavit-in-support of Notice of Motion

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shows that there is no case whatsoever made out by the

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petitioner for setting aside the order of exparte hearing of the

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suit and for granting leave to file written statement. The

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petitioner claims that the action papers got mixed up with some other matter, but the claim is devoid of particulars. The affidavit is silent as regards the specific action papers that were needed for preparing the written statement. It does not disclose the matter in which the same were mixed up, when was the mixing up realised, when and how the same were traced out. Though the affidavit states that the written statement has been kept ready for filing but does specify the date on which it was prepared and made ready for filing. In the absence of the above particulars, it is difficult to believe the claim made by the petitioner. Mr. Patil, the learned counsel for respondent no.1 submits that the evidence in the suit has already commenced and by now three witnesses have been examined. The witnesses have also been cross-examined by the other defendants. The Bombay City Civil Court after taking note of these facts has dismissed the application. There

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is no infirmity whatsoever in the order impugned in the petition. Hence, the petition is dismissed in limine.

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(Smt. R.P. SondurBaldota, J.)

The Municipal Corporation of Greater Mumbai and Ors. v. Rahul Developers, through Partner, Mr. Idris Khan and Ors.

Case brief

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The Municipal Corporation of Greater Mumbai and Ors. v. Rahul Developers, through Partner, Mr. Idris Khan and Ors.

Case brief

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