:1: IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE NOTICE NOTICE OF MOTION NO.4291 OF 2007 OF MOTION NO.4291 OF 2007 OF MOTION NO.4291 OF 2007 IN IN IN SUIT SUIT SUIT NO.3186 OF 2005 NO.3186 OF 2005 NO.3186 OF 2005 Shaikh Abdul Gafur ..Plaintiff V/s The Municipal Corporation of Greater Mumbai and Anr. ..Defendants Shri M.V. Holamagi for the Plaintiff in support of Notice of Motion. Mr. H.C. Pimple for defendnat No.1. Shri A.C. Singh a/w D.R. Shah for defendant No.2 CORAM : A.A.SAYED, J. DATE : 8TH MAY, 2009 P.C. 1. This Notice of Motion is taken out by the plaintiff for restoration of the suit which was dismissed on 19-10-2005 pursuant to the order dated 4th October, 2005 passed by Ld. Prothonotary and Sr. Master, whereby it was directed that the plaintiff should remove the office objections on or before 18-10-2005, failing which the plaint would be rejected under Rule 986 of the Bombay High Court (Original Side) Rules. :2: 2. The case of the plaintiff is that the suit was originally filed in the City Civil Court, Bombay, being L.C.Suit No.4804/1998 challenging the auction sale of the suit property by the Bombay Municipal Corporation. By the order dated 28-01-1999, the City Civil Court held that it has no pecuniary jurisdiction to entertain and try the suit and the plaint was returned under Order 7 Rule 10 of C.P.C. Accordingly the plaint was then filed in this Court on 9th August, 2005 after the below mentioned proceedings were adopted by the plaintiffs during the interregnum. The Order of City Civil Court was challenged by way of appeal from the order and it came to be dismissed. Thereafter a review petition was filed against that order which was also came to be dismissed and ultimately the plaint was then presented before this Court in August 2005 as stated above. The plaint presented in this Court was then numbered as 3186/2005. 3. It is the case of the plaintiff that he came to know about the dismissal of the suit only on 19th July, 2007 and accordingly he has filed the present Notice of Motion for setting aside the impugned order :3: of the Ld. Prothonotary and Senior Master. It is the further case of the plaintiff in the plaint that he and his predecessors were in exclusive possession, use and enjoyment of the suit property being CTS No. 2050, Mandvi Division and it has been assessed by Defendant No.1-Corporation under Assessment No. 4262(4). The explanation given for not having pursued the suit in this Court, which ultimately resulted in dismissal of the suit, is stated by the plaintiff in para 2 of the affidavit in support of the Motion. It is averred by the plaintiff that he was not keeping well and was having eye trouble and he had undergone eye operation and therefore he could not remain present before the Ld. Prothonotary and Sr. Master. It is alleged by the plaintiff that the defendant Nos.1 and 2 in collusion with each other are depriving the plaintiff of his rights in respect of the suit property. The learned Counsel submitted that the plaintiff and his predecessors have been in possession of the suit property since last many decades and he was paying assessment taxes in respect of the suit property and he is in exclusive possession of the suit property and he has become absolute owner thereof. The learned Counsel further submitted that the suit :4: property was burnt in riots in 1993 and he has lost all his belongings, money and documents in respect of suit property. It is stated that because of collusion between the defendant No.1-Corporation and defendant No.2, the suit property was put up for auction sale because of arrears of taxes payable to the Defendant No.1-Corporation and the plaintiff has paid an amount of Rs. 45,000/- towards part of the arrears of taxes. It is stated that no proper procedure in respect of the auction sale was followed and there was complete collusion between defendant No.1-Corporation and defendant No.2, and it is on this basis the suit was filed by the plaintiffs to declare the auction by the defendant No.1-Corporation to the defendant No.2 as null & void. 4. The learned Counsel for defendant No.2 has filed a reply opposing the Motion. In the affidavit in reply it is stated that the reasons for delay is not satisfactorily explained by the plaintiff and the same cannot be believed. It is averred that the defendant No.2 is an auction purchaser of the suit property under auction held by the defendant No.1-Corporation and he has initially paid an amount :5: of Rs.35,000/- being 25% of bid price which was fixed at Rs. 1,31,000/-. Thereafter on 27th February, 2005 the defendant No.2 has paid the balance amount of Rs. 96,000/- to defendant No.1-Corporation and hence, the full bid price was paid and ultimately the defendant No.1 Corporation has issued a certificate of sale dated 4-11-2005 in favour of defendant No.2 and the mutation entry has also been recorded in the property card in the name of defendant No.2. The learned Counsel for the defendant No.2 pointed that in view of the fact that the sale certificate has already been issued and there is no proper explanation given by the plaintiff for restoration of the suit, the Motion is required to be dismissed. The learned counsel further stated that in any case the plaintiff is not the owner of the suit property and the suit property was owned by a Trust and the plaintiff has no right title and interest in respect of the suit property and no useful purpose will be served by restoring the suit. 5. The learned Counsel for the defendant No.1-Corporation referred to the averments in the affidavit in-reply filed by the Corporation and supported the arguments of the learned Counsel for :6: defendant No.2 and pointed out that the suit was dismissed on 19-10-2005 and the plaintiff has filed the above Notice of Motion on 10-2-2007 and there is delay of about 15 months in filing the Motion. 6. I have heard the learned Counsel for the parties and perused the material on record. Prima facie, there does appear to be a cloud insofar as title of the plaintiff is concerned. The claim of the plaintiff that he is the owner of the suit property will, however have to be tested at the time of trial and I need not dwell into that aspect at this stage. Pertinently the balance amount of Rs. 96,000/- in respect of the auction sale was paid by defendant No.2 on 27th April, 2005, when the above suit was pending and the defendants were well aware of the pendency of the suit. It is to be noted that the certificate for sale was issued on 4th November, 2005, immediately after the suit was dismissed on 19th October, 2005. Be that as it may, it is a matter of record that the plaintiff has paid a sum of Rs. 45,000/- to the defendant No.1-Corporation towards part payment and the arrears of property taxes after the notice was issued for auction sale of the suit property. :7: 7. Taking over all view of the matter, though the explanation for not having perused the suit and not removing the office objections which ultimately resulted in the dismissal of the suit are not entirely satisfactory, in the interest of justice, I am inclined to grant an opportunity to the plaintiff to pursue the suit instead of non suiting him. The defendants can be compensated by imposing appropriate costs upon plaintiff. I am therefore, inclined to allow the Motion subject to costs. Consequently I pass the following order :- (i) The Notice of Motion made absolute in terms of prayer clause (a) and (b) subject to costs of Rs. 20,000/- i.e. Rs.10,000/- to be paid by the plaintiff to the defendant No.1-Corporation and Rs.10,000/- to be paid by the plaintiff to defendant No.2. (ii) Office objections to be removed by the plaintiff within a period of six weeks from today, failing which the Notice of Motion will :8: be treated as dismissed without further reference to the Court. 8. Notice of Motion to stand disposed of. ( A.A. SAYED, J.) A.A. SAYED, J.) A.A. SAYED, J.)