Final Order 1

Order Details: Notice of Motion
Pdf Text: CNR NO. : MHCC01-000155-2018. Notice of Motion No. 58/2018.
in L.C. Suit (Disposed) No. 779/2009.
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
NOTICE OF MOTION NO. 58 OF 2018.
IN
L.C. SUIT (DISPOSED) NO. 779 OF 2009.
Mrs. Kalpanadevi Govindsingh Parmar...... ….. PLAINTIFF.
V/s.
MCGM +1. …........................................…
And
Mr. Pravin Vasave. …...................…………
…..
…..
DEFENDANTS.
RESPONDENT.
CORAM : Shri. A.G. Santani.
(Court Room No.11).
DATED : 07th October, 2022.
APPEARANCES :
Mr. Sachin J. Kadam, Ld. Advocate for the Plaintiff.
Mr. Somsinha, Ld. Advocate for Defendants/Respondent.
*****
01. The plaintiff has taken out this Contempt Notice of Motion
(for short ‘the NM’), against the respondent, to have committed breach
of the Court Order dtd. 21.08.2009 and for taking the suitable action by
forwarding him to Civil Prison. Perused the NM, accompanying affidavit
of the plaintiff and reply of the respondent. The parties did not prefer to
lead evidence on this contempt NM. Gone through the written notes of
arguments filed by the plaintiff and the respondent, respectively below
Exhibit 29 and Exhibit 31.
02. Considering the record, the point for determination, along -
with my finding and the reasons therefor, are as under :
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CNR NO. : MHCC01-000155-2018. Notice of Motion No. 58/2018.
in L.C. Suit (Disposed) No. 779/2009.
Sr. No. POINTS FINDINGS
(i). Whether the plaintiff proved that the
respondent willfully and intentionally
disobeyed the Order dtd. 21.08.2009 ?.... … Not proved.
(ii). What Order ? …..............….................... …As per final Order.
-: REASONS FOR THE FINDINGS :-
AS TO POINT NOS. 1 TO 3.
03. By filing this NM, the plaintiff contended that initially, her
NM No. 441/2009 was made absolute, as per the Order dtd. 21.08.2009
in terms of prayer clause (c). Thereby, defendant No.1 was restrained to
proceed against Shop No. 3 i.e. the suit premises, duly described in the
plaint. However, on 22.04.2015, as she and her advocate were absent,
the suit came to be dismissed for 'want of prosecution'. Hence, she filed
NM No. 108/2016, which was made absolute on 06.04.2017, subject to
payment of costs. Accordingly, she complied the said Order and this suit
was restored. Moreover, in the meantime, advocate for defendant No. 1
regularly attended the matter. Surprisingly, on 12.12.2017, she received
the defendant's notice for removal of the suit structure within 24 hours.
On 13.12.2017, she replied the notice. However, even thereafter, on that
day, at about 03.30 p.m., defendant No.1 partially demolished this suit
premises and committed breach of the said Order of this Court, in-spite
of its due knowledge. To support this NM, she filed copies of the notice
dtd. 12.12.2017, her reply dtd. 13.12.2017, the roznama, a photograph
and her letter dtd. 14.12.2017. The respondent denied this NM in view
of his reply and submitted that he never demolished the suit premises.
In fact, on 12.12.2017, defendant No. 1 issued the notice for demolition
of illegal structure of the plaintiff and started demolition of Shop No. 4,
which was lying 'empty'. However, at that time, the plaintiff came to the
Officer and showed them the case papers in respect of the present suit.
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CNR NO. : MHCC01-000155-2018. Notice of Motion No. 58/2018.
in L.C. Suit (Disposed) No. 779/2009.
Hence, the concerned Officer did not proceed against the suit premises.
In support of his contentions, the respondent also filed photographs dtd.
16.12.2017 and 21.02.2019 of the suit premises showing its existence.
In the circumstance, he preyed for dismissal of this Contempt NM.
04. By filing her written notes of arguments, below Exhibit 29,
the plaintiff re-iterated her contentions of this NM and submitted that
the respondent committed breach of the said Order. Whereas in view of
his written submissions, vide Exhibit 31, the respondent contended that
the suit premises was never demolished and also referred to the above
photographs. Moreover, the plaintiff failed to substitute the authenticity
of the suit premises and therefore, the suit is dismissed on 18.04.2019.
He further filed copy of this judgment.
05. Having considered the rival stands, it is to be noted that by
filing this NM, the plaintiff's only anxiety is to get punished the Officer
of defendant to have intentionally disobeyed this Court's Order of dtd.
21.08.2009, as regards the suit premises. She contended that even after
due knowledge of this Order, the respondent willfully committed breach
and demolished the suit premises partly. To prove this fact, she filed the
copy of one photograph at Exhibit C, annexed with her affidavit for this
NM. However, on its perusal, it appears that it lacking the digital details
as regards the date, time and place of the contents. Further, barring this
photograph, the plaintiff didn’t lead any evidence in support of this NM.
Certainly, as this is the Contempt NM, she was required to establish her
contentions strictly, when they are denied by the other side. However,
taking into account this record, it is difficult to infer that the respondent
willfully disobeyed the Order. Contrarily, he denied to have proceeded
against the suit premises and filed the photocopies of shop Nos. 1 to 6
of dtd. 16.12.2017 i.e. after the alleged demolition, which manifest that
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CNR NO. : MHCC01-000155-2018. Notice of Motion No. 58/2018.
in L.C. Suit (Disposed) No. 779/2009.
the suit premises was still intact. He could file the recent photographs of
dtd. 21.02.2019 to that effect. In this way, he could prima-facie prove
that on that day, the suit premises was not demolished. Consequently, in
the light of this record, there is no iota of material to assume the alleged
willful default and disobedience of this Court's Order by the respondent.
Hence, I answered point No.1 in the negative and in the answer to point
No. 2, I pass the following Order :
-: O R D E R :-
(i). Notice of Motion No.58/2018 stands dismissed.
(ii). Notice of Motion No. 58/2018 is, accordingly, disposed of.
{A.G. Santani}
Mumbai. Ad-hoc Judge,
Dated : 07.10.2022. City Civil Court, Mumbai.
Dictated on : 07.10.2022.
Transcribed on : 08.10.2022.
Checked and Signed on : 11.10.2022.
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CNR NO. : MHCC01-000155-2018. Notice of Motion No. 58/2018.
in L.C. Suit (Disposed) No. 779/2009.
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME
14.10.2022 at p.m.
Name of the Stenogrpher
Mrs. S.R.Mejari
Name of the Judge (with Court Room No.) HHJ Shri A.G.Santani
(Court Room No.11).
Date of Pronouncement of Judgment/Order 07.10.2022.
Judgment/Order signed by P.O. on 11.10.2022.
Judgment/Order uploaded on 14.10.2022.
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