Final Order 1

Order Details: Notice of Motion
Pdf Text: ... 1 … Order in NM No. 89 of 2020
MHCC010002462020 Presented on : 07.01.2020
Registered on : 07.01.2020
Decided on : 08.01.2025
Duration : 05 00 01
Years Months Days
IN THE COURT OF CITY CIVIL FOR GREATER BOMBAY, AT BOMBAY
NOTICE OF MOTION NO. 89 OF 2020
IN
SUIT NO.1863 OF 2017
(CNR NO. MHCC010002462020)
Mrs. Shaila Suresh Boble
Aged about 65 years, Occ : Household
R/at Room No.10, House No.77,
Mathuradas Thakkar Chawl,
Rameshwar Mandir, Premier Road,
Kurla (West), Mumbai 400 070. …. Plaintiff
Versus
1
1(a)
1(b)
Shri. Jethalal Gopalji Thakkar alias Karia
Husband of deceased Taramati Jethalal
Thakkar
Age about 86 years, Occ : Retired.
R/at : A-105, Mahavir Jyoti,
Modi Patel Road, Bhayandar (West),
Thane 401 101.
Mr. Mukesh Jethalal Thakkar @ Karia
Aged about 66 years,
Son of deceased No.1
R/at : A/105, Mahavir Jyoti,
Modi Patel Road,
Bhayander (West), 401 101.
Mrs. Kaushika Prakash Thakar,
Aged about 69 years,
Married daughter of deceased defendant
No.1
R/at : B,1/45, Meghdoot Co-op Housing
…. deleted
(since deceased)
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1(c)
1(d)
2
2(i)
2(ii)
3
Society Ltd, Natakwala Lane,
Borivali (West), Mumbai 400 092.
Mrs. Nayana Suresh Chotai
Aged about 65 years,
Married daughter of deceased defendant
No.1
R/at : Sr. No.165/B, 18, Patrakar Society,
New Tilak Nagar, Mumbai 400 089.
Mrs. Urvashi Parag Desai
Aged about 52 years,
Married daughter of deceased defendant
No.1
R/at 3-6, Ruturaj Apartment,
Opp. Gurukul, Dhebar Road, Rajkot,
Gujrat 360 002.
Shri. Harish Bhagwandas Thakkar
Son of deceased Bhanumati Bhagwandas
Thakkar
R/at : 2/4, Sakal Nagar, Pune-7
Smt. Heena Wd/o Harish B. Thakkar
Aged about 58 years,
Shri. Puneet S/o Harish B. Thakkar
Aged about 32 years
Shri. Rishabh S/o Harish B. Thakkar
Aged about 24 years,
and residing at 2/4, Sakal Nagar,
Baner Road, Pune 411 007.
Mrs. Sneha Ramesh Shah,
Married D/o of Bhanumati Bhagwandas
Thakkar
Aged about 69 years,
R/at : 137/2, ITI Road, Acropolis, Flat
No.7, Aundh, Pune 411 007.
…. deleted
(since deceased)
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4
5
6
7
8
9
10
11
Mrs. Anuradha Arun Shah
Aged about 66 years, Occ : Housewife
R/at : 1 M.G. Road, Camp Abbas
Chambers, Pune 411 101
Shri. Mukesh Manulal Shah
Husband of Late Saroj d/o of Bhanumati
Bhagwandas Thakkar
Aged about 63 years, Occ: Business
Shri. Dhanraj Mukesh Shah
Aged about 27 years, Occ : Service
Mrs. Tulsi Bhavin Chandak
married d/o Late Saroj D/o of Bhanumati
Bhagwandas Thakkar,
Aged about 31 years, Occ : Housewife
Above defendants No.5 to 7 reside at :
301, Pandol Apartment, 160, M. G. road,
Camp Pune, 411 101
Smt. Sushila wd/o Mathuradas Govindji
Thakkar
Aged about 71 years, Occ : Household
Mr. Shailesh s/o Mathuradas Govindji
Thakkar
Age about 49 years, Occ : Not known
Ms. Vandana Mathuradas Govindji
Thakkar
Occ : Advocate
Mr. Pankaj s/o Mathuradas Govindji
Thakkar
Aged about 41 years,
Above defendants no.8 to 11 residing at :
83, Father Peter Pereira Marg, Premier
Road, Kurla (West), Mumbai 400 070.
…. deleted
(since deceased)
…. Defendants
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CORAM : HIS HONOUR THE PRINCIPAL JUDGE,
SHRI A.SUBRAMANIAM
C.R.NO..
: 19
DATE : 08th DAY OF JANUARY, 2025
Appearances :-
Ld. Adv. S. N. Kadam for the plaintiffs.
Ld. Adv. Arun Mishra for Defendant No.1(a) to 1(d), 2(i) to 2(iii) and 3
to 7.
Ld. Adv. Vandana Thakkar for defendant No.9 to 11.
ORAL ORDER
1. By present Notice of Motion, the defendant prays for rejection of
plaint.
2. It is the case of defendant that plaintiff has filed this suit for
declaration that decree dated 24.10.2005 passed in Suit NO.4859
of 2004 is obtained by defendant No.8 to 11 by playing fraud on
court and that it is null and void and not executable. The
defendants have raised objection about maintainability of the suit
and jurisdiction of the Court. It is the case of plaintiff that her
husband Suresh Boble and B.D. Shetty were joint tenants since
the year 1983 and property was vested with official assignee of
Hon'ble High Court of Bombay in Insolvency Petition No.116 of
1971 against Mathuradas Thakkar, predecessor in title of
defendants and the original owner of the property. There is
nothing on record to prove that her husband and B. D. Shetty
were legal tenants of suit premises and therefore surrender of
alleged tenancy by her husband to Bhagwandas Thakkar and
Taramati Thakkar does not arise. Plaintiff is claiming to be tenant
of premises since March 2001 falsely contending that tenancy
right was transferred from name of husband from Bhagwandas
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Thakkar and Taramati Thakkar and defendants No. 1 to 7 are
alleged to be present Landlords of present suit premises. There is
nothing filed on record in that effect. Decree has been passed on
24.10.2005 against the husband of plaintiff declaring him to be
trespasser in respect of suit premises and therefore, plaintiff
cannot claim any independent right in suit premises. Plaintiff is
claiming tenancy right through her husband Suresh Boble and by
decree dated 24.10.2005 in Suit No.4859 of 2004 the husband
has been declared as trespasser and execution application is
pending and thus no fresh suit can lie. Suit is filed challenging
decree passed in Suit No.4859 of 2004. The Notice of Motion
No.1118 of 2013 filed by her husband for setting aside the decree
was dismissed by Ld. Trial Court on 10.04.2017 and Appeal from
Order also dismissed by Hon'ble High Court. In such
circumstances, this Court cannot go as an Appellate Court. Decree
has attained finality. The husband and plaintiff were staying
together along with their children and this is also admitted fact.
The decree passed against husband is equally binding on plaintiff
being family member of Judgment Debtor. There is no
independent right of plaintiff. The plaintiff has participated in
Execution proceeding by filing obstructionist notice bearing M.A
No. 79 of 2017 claiming similar reliefs in suit. Executing power
has power to adjudicate upon all issues arising from decree and
there is mandatory bar of Jurisdiction in law. Hence, prayed for
rejection of plaint.
3. Plaintiff has opposed the claim by filing reply contending that the
Notice of Motion is false, frivolous and vexatious and abuse of
process of law. The ground of maintainability and Jurisdiction are
triable issues and are to be decided in suit. It is denied that
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Mathuradas Thakkar is predecessor in title and owner of the
property and that the claim is false and bogus. True facts are
withheld and by withholding same, ex-parte decree is obtained
and same is not executable and forcible possession is sought for.
The plaintiff is in occupation and possession of suit premises as
independent right of tenant in suit premises of defendant No. 1 to
7 and M.A No.79 of 2017 is pending in the execution proceedings
and rent is being paid. It is contended that Devendra Thakkar
died leaving Mathuradas Thakkar, Bhanumati and Taramati
Thakkar as legal heirs. Akshaya Niketan was sold by Mathuradas
Thakkar to Parshuram Ganpat Baddi by conveyance dated
04.07.1973 and said conveyance was set aside on 21.06.1990 at
the instance of Taramati and Bhanumati Thakkar. Inspite of this,
defendant No.8 to 11 are said to be only legal heirs of deceased
Devendra Thakkar and false representation and statements have
been made. Defendant No. 1 to 7 are co-owners being heirs of
deceased Taramati and deceased Bhanumati Thakkar. The
tenancy of suit premises is transferred to name of plaintiff from
name of husband. In the year 2000, husband of plaintiff decided
to settle at native place so he vacated the surrendered the suit
premises to other co-owners. Since, plaintiff was not ready to
settle at native of husband, plaintiff was searching another
premises and therefore in March 2001, she approached co-owners
and Landlords of suit premises and requested them to create
tenancy in her name and accordingly she was accepted as tenant
of suit premises since March 2001. In view of these facts, by
suppressing all facts, false suit was filed against husband in 2004
with collusion with B. D. Shetty and ex-parte decree was obtained
in collusion. It is denied that she has admitted that her husband is
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residing with her or that such admission is binding. Considering
same, it is prayed that notice of Motion should be rejected.
4. Heard both the sides. Considered the submissions. Perused the
plaint and documents. Following points arise for my
consideration and I answer the same as under for reason stated
hereinafter
Sr no Points Finding
1 Whether the suit is maintainable in view of
provisions of O 21 of C.P..C. 1908
In the negative.
2 What order Plaint is rejected.
REASONS
As to Points No.1 and 2:
5. At the outset, there could be no bar if the declaration is sought
purely on basis of decree being obtained by fraud. It will depend
on facts of each case whether such suit will be maintainable or
not. Having considered, in present case, various Judgments are
cited by both the parties. Plaintiff has relied upon the Judgment
in the case of British Airways V/s Art Works Export Ltd and
Another AIR 1986 Calcutta 120 where plea of there being no
cause of action to suit was held to be not a ground for rejection of
plaint. The Hon'ble High Court held that where on face of suit
being barred by any law the Court shall dismiss the suit. In the
case of Arjan Singh and Ors V/s Union of India and Ors AIR 1987
Delhi, 165 it was held that plaint cannot be rejected on ground of
limitation. In the case of Narendra Kumar Jain and Anr V/s
Sukumar Chand Jain and Ors 1994 AlR, Allahbad, 1 it was held
that dispute between rival managing committees is maintainable
and failure to claim correct relief or relief which cannot be
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substantiated cannot be ground of rejection of plaint. In the case
of Crescent Petroleum Ltd V/s M. V. Monchgorsk and Anr AIR
2000 Bombay 161 it was held that as plaint disclose cause of
action, suit cannot be dismissed at interlocutory stage and Order
VII Rule 11 of CPC has to exercised sparingly. The Judgment of
Mayar (H.K) Ltd and Ors V/s Owners and Parties Vessel M.V. AIR
2006 Supreme Court 1828 deals with claims cannot be rejected
on basis of averments in written statement and plaint has to be
considered on its own. In the case of Surjit Kumar Gill and Anr
V/s Adarsh Kaur Gill and Anr AIR 2014 Supreme Court 1478, a
ground of limitation cannot be considered for rejection of plaint
is given. In the case of Brahmdeo Chaudhary V/s Rishikesh
Prasad Jaiswal and Anr (1997) 3 SCC 694 aspect of objection and
resistance has been considered by Hon'ble Supreme Court. In the
case of Rame Gowda by L.R’s V/s M. Varadappa Naidu by L.R’s
and Anr 2004 (3) Bom.C.R 788, it is pointed that the fraud
defeats everything and that settled possession should be
protected. In the case of Krishna Ram Mahale V/s Shobha Venkar
Roa 1989 (3) SC 489, possession was sought to be protected. In
the case of Balwant Singh and Anr V/s Daulta Singh by Lr’s and
Ors AIR 1997 SC 2719, in said case the entries in revenue record
do not create any title is stated.
6. Having considered this, it is apparent that power under Order VII
Rule 11 of CPC is to be exercised if the suit is found to be not
maintainable or barred by any provisions of law. Having
considered this, one has to consider the facts of the case. As
against this, the contesting defendants No. 9 to 11 have relied
upon the case of Mahabir Singh V/s Subhash AIR SC (2008) 276,
it is held that no court shall have jurisdiction to enter any suit or
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application if filed after period of limitation. In the case of
Shipping Corporation of India Ltd V/s Machado Brothers and Ors
(2004) 11 SCC 168, it is held that subsequent event can be
considered if the proceedings become infructuous. In the case of
T. Arvindam V/s T. V. Satyapal and Anr (1997) 4 SCC 467, it is
held that power vests in Court under Order VII Rule 11 of CPC if
the suit is vexatious.
7. At the outset, it is necessary for me to point out that considering
above scope, I shall not be dealing with facts or disputed facts in
case but only will consider record and admitted facts as stated as
per plaint and Written statement. It is part of record that
Mathuradas was declared insolvent on 21.09.1971. On
05.09.1995, order of insolvency was annulled. On 19.09.2001,
Mathuradas Thakkar died intestate. Persons filing Notice of
Motion are legal Heirs of Late Mathuradas and allegedly
succeeded to his property and accordingly have right in the said
property. On 29.09.2004, defendants 8 to 11 filed suit No.4859 of
2004 against plaintiff’s husband and B. D. Shetty for possession
being trespassers. On 24.10.2005, the suit was decreed and
possession was directed to be handed over. In 2006, execution
proceeding came to be filed. On 27.08.2012, defendant No. 8 to
11 filed Chamber Summons to be joined in suit filed by present
plaintiffs and copy of decree and property card were attached to
said Chamber summons. On 21.03.2013, Notice of Motion filed
by husband of plaintiff for setting aside decree inn Suit No. 4859
of 2004 is preferred.
8. On 09.12.2016, execution was commenced and decree could not
be executed because of obstruction by family members of
plaintiff. On 10.04.2017, Notice of Motion filed by husband of
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plaintiff is dismissed. On 17.07.2017, Hon’ble High Court
dismissed the Appeal against rejection order of setting aside
decree. In April 2017, plaintiffs filed R.A.D. Suit No. 612 of 2017.
August 2017, present suit is filed. In September 2017, obstruction
proceedings all are filed by present plaintiff.
9. Having considered this, one has to consider reliefs claimed in
plaint and allegations in it. The plaint alleges that plaintiff is
monthly tenant in respect of Room No.10. It is further contended
that she become tenant of premises since March 2001. It is
further contended that earlier her husband and B. D. Shetty were
joint tenants. In the year 2001, B.D. Shetty relinquished rights in
favour of husband and her husband surrendered all right, title
interest to other co-owners and thereafter, rent receipt issued in
name of plaintiff. Taramati and Bhanumati Thakkar become the
co-owners of property. The name of husband and other joint
tenant is mentioned by official assignee. Defendant No. 8 to 11
are playing fraud. Decree was passed in 2005 and by managing
Vinoba Bhave Police Station with held of PSI Ankush came to
execute decree through bailiff from Office of Sherif on
09.12.2016. Same was obstructed. Inspite of same, by taking
police protection the decree is tried to execute. Defendant No.10
is practicing advocate and she is aware of the plaintiff being the
tenant of premises. Husband has taken proceeding to set aside ex-
parte decree same is rejected and Appeal from order is also
rejected. Suit property is not in possession of defendants and false
suit has been filed against her. Plaintiff had to file a suit against
B.M.C. She is in exclusive use, occupation and possession of suit
premises and has various documents like Election Card, Bank
Passbook, etc to show her occupation. It is alleged that on
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31.03.2017, the defendant No.10 and 11 threatened to dispossess
plaintiff in one week. R.A.D Suit came to be filed before Ld. Small
Causes Court. The SC Suit No.4859 of 2004 is fraud and not legal
and valid decree and prays that declaration be granted that
defendant No.8 to 11 played fraud for obtaining decree to
deprive rights of plaintiff. Reliefs claimed are that declaration that
decree in Suit No.4859 of2004 is by playing fraud and that
decree is null, void and illegal and not binding on plaintiff and
that defendants No. 8 to 11 are not entitled to execute decree and
injunction from execution of decree passed in said suit.
10. Having considered nature of suit one has to consider provisions
of CPC. On considering provisions of CPC, it is apparent that
Order XXI of CPC is itself a complete code. Order XXI Rule 101
contemplates that all questions including relating to right, title
interest in property arising between parties to proceeding on
application under Rule 97 or Rule 99 all their representatives and
relevant to adjudication of application shall be determined by
court dealing with application and not by separate suit for
purpose. Thus, if one considers this, one must also consider Rule
102 which contemplates that nothing in rules 98 and100 shall
apply to resistance or obstruction in execution of decree for
possession of immovable property by person to whom Judgment
Debtor has transferred after institution of suit in which decree
was passed.
11. If one considers entire proceedings the date of filing and transfer
are material. Alleged transfer is said to be in 2001. Suit is filed in
2004 for possession against husband of plaintiff. Surprisingly,
husband challenges decree as occupant in 2013 and 2016.
Appeals are also filed. Same is placed to rest in 2017. Thereafter,
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in 2017 present suit is filed. It is not that the plaintiff was not
aware of decree. Pleadings show that in 2016 obstruction was
made to decree. It is also part of record that in other suit filed
against BMC by plaintiff, present applicants appear and the
decree was pointed out to Ld. Court. Thus, considering this, one
must consider whether the issue involved is covered. Apparently,
the entire reliefs relate to decree and its execution. Rule 101
contemplates that all questions including right, title interest in
property apply to execution and executing court is sole authority
and any other suit is barred. If that is the case, one has to
consider validity of this case considering said provisions. A detail
obstruction has been raised by present plaintiff before executing
court also on similar grounds. There cannot be two forums for
adjudication. Order XXI Rule 101 does not permit fresh suit or to
consider the aspect of matter involving title, etc in another suit.
Apparently, title or interest of property of present plaintiff as well
as original decree holder is in question which can be considered
by executing court, if it so deems fit. If we consider entire facts,
apparently, it is seen that issue involved in present suit is covered
under Order XXI rule 101 of CPC and question of right, title and
interest in property between parties to proceedings or their
representatives and relevant to adjudicate application are to be
dealt and determined by court dealing with execution
application. Present suit is barred in view of said provisions.
12. It is clarified that this court has not considered facts on merits.
Suffice to say, suit being barred under Order XXI Rule 101 of CPC,
plaint is bound to be rejected. Hence, I pass the following order.
O R D E R
1. Notice of Motion No. 89 of 2020 is hereby allowed.
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2. Plaint stands rejected under O-7, R-11 of CPC.
3. No order as to costs.
DATE : 08.01.2025 (A.SUBRAMANIAM)
PRINCIPAL JUDGE
CITY CIVIL COURT, MUMBAI.
(JO CODE MH01711).
Dictated and transcribed on : 08.01.2025
Checked and signed on : 15.01.2025
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"CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER"
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
(Grade-III)
DATE : 15.01.2025 at 05.59 pm Mr. Mohit M. Patange
Name of the Judge (with Court no.) : SHRI A.SUBRAMANIAM. C.R.NO.19.
Date of pronouncement of judgment/order : 08.01.2025
Judgment/order signed by the P.O. on : 15.01.2025
Judgment/order uploaded on : 15.01.2025
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