Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM-104-2020 in SU-95-2019
IN THE CITY CIVIL COURT AT MUMBAI.
NOTICE OF MOTION NO.104 OF 2020
(CNR No.MHCC01-000273-2020)
IN
SUIT NO.95 OF 2019.
(CNR No.MHCC01-000273-2019)
Abdul Rehman Khan }...PLAINTIFF.
Versus
Chitavali Babu Shaikh and Ors. }...DEFENDANTS.
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Shri.Tripathi, learned advocate for the plaintiff.
Shri.Rane, learned advocate for defendant No.4.
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CORAM : HIS HONOUR JUDGE SHRI.P.P.RAJVAIDYA (C.R.NO.62)
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O R A L O R D E R
(Delivered on 06/12/2021)
1. By filing this Notice of Motion, defendant No.4 has claimed
reliefs as under;
a) This Hon’ble Court be pleased to set aside exparte order dated
14.08.2019 passed against defendant No.4;
b) This Hon’ble Court be please to recall the order dated
06.11.2019 passed in the Notice of Motion No.291of 2019 and
further be pleased to allow the defendant No.4 to file his reply to
the Notice of Motion bearing No.291 of 2019;
c) This Hon’ble Court be pleased to restrain the plaintiff, his
agents, partners, family members, and persons claiming through
him be restrained by an temporary order and injunction of this
Hon’ble Court from creating third party rights, title and interest
in respect of the suit premises;
2. Read the affidavit and rejoinder filed by defendant No.4 in
support of the Notice of Motion. Read the reply and sur-rejoinder filed
by the plaintiff. Heard learned Shri.Rane advocate for defendant No.4 &
learned Shri.Tripathi advocate for plaintiff. Perused the entire record.
3. Learned advocate for defendant No.4 argued that when
defendant No.4 had been to Goa in the month of November 2019 and
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when defendant No.2 was also out of Mumbai, plaintiff took
disadvantage of their absence in the suit premises and entered illegally
therein by break opening its lock after obtaining order of temporary
injunction from this court. He argued that plaintiff has obtained order
of temporary injunction by misleading this court. He argued that father
Celestine was original tenant in respect of the suit premises till his
death which occurred in year 2012. He argued that plaintiff has averred
in para 2 of the plaint that Celestine had sons by names Christopher
Fernandes, Joyce Fernandes & Thomas Fernandes however, defendant
No.4 has no brother by name Joyce Fernandes. He argued that plaintiff
has falsely shown to have served the Notice of Motion No.291 of 2019
and Writ of Summons on defendant Nos.2 to 4 on the address given in
the title clause of the plaint but those defendants never resided on the
said address. He argued that plaintiff has falsely shown that defendant
No.3 has accepted service for herself and on behalf of defendant Nos.2
and 4. He argued that Joyce Fernandes is the name of wife of defendant
No.2 but she resides at Goa and she was not in Mumbai on 24/01/2019
and hence, there is no question of her accepting service of Notice of
Motion and Writ of Summons on that day. He argued that plaintiff has
obtained
exparte order dtd.14/08/2019 and order dtd.06/11/2019 of
temporary injunction in Notice of Motion No.291/2019 by playing fraud
upon this court. He argued that documents produced on record by
defendant No.4 clearly show that father of defendant No.4 expired in
year 2012 while residing in the suit premises due to which, contention
of the plaintiff cannot be accepted that father of defendant No.4 had
surrendered tenancy rights in respect of the suit premises in favour of
the plaintiff in year 2011. He argued that plaintiff has prepared false
and fabricated documents by forging signature of father of defendant
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No.4 on the so called memorandum of agreement, Memorandum of
Understanding and receipts produced with the plaint. He argued that
defendant No.1 has obtained opinion of handwriting expert which also
shows that the signatures on those documents are not of the father of
defendant No.4. He argued that copies of ration card, rent receipts,
electricity bills, Adhar cards etc. produced by defendant No.4 with this
Notice of Motion are more than sufficient to show that defendant No.4
was in possession of the suit premises and plaintiff has taken illegal
possession of the suit premises by obtaining order dtd.06/11/2019 in
Notice of Motion No.291/2019 from this court due to which, it is
necessary to set aside the said order and order dtd.14/08/2019
whereby suit is ordered to proceed
exparte.
4. As against this, learned advocate for the plaintiff argued
that plaintiff has properly served the defendants with Writ of Summons
through bailiff of the court as can be seen from the bailiff report. He
argued that defendant No.3 has accepted service of Notice of Motion
No.291/2019 and Writ of Summons for herself and on behalf of
defendant Nos.2 & 4 as can be seen from the bailiff reports. He argued
that since this court was satisfied that defendants failed to appear
despite proper service,
exparte order dtd.14/08/2019 has been passed
in the roznama and thereafter, Notice of Motion No.291/2019 is made
absolute in terms of its prayer clause (a) as per order dtd.06/11/2019
as there was no contest to the said Notice of Motion and hence, the
prayers made in terms of prayer clauses (a) and (b) of this Notice of
Motion cannot be accepted.
5. At the first instance, it may be stated here that in the
course of argument, learned advocate for the plaintiff submitted at the
bar that court may accept the prayer made in the Notice of Motion for
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grant of temporary injunction. In view of said statement, this court is of
the opinion that prayer clause (c) of the Notice of Motion can be
accepted pending final disposal of the suit.
6. Contention of defendant No.4 is that he has not been
served at all with Notice of Motion No.291/2019 and Writ of Summons.
It is the contention of the defendant no.4 that plaintiff has filed a false
report through bailiff for falsely showing that Notice of Motion and Writ
of Summons are served on defendant Nos.2 to 4 and the service has
been accepted by defendant No.3. Plaintiff has contended in plaint that
defendant Nos.2 to 4 are sons of Celestine Fernandes. Learned advocate
for defendant No.4 argued that plaintiff though has shown defendant
No.3 Joyce Fernandes as son of Celestine, in fact, Celestine has no son
by that name from which, it is clear that the service allegedly made on
defendant No.3 Joyce Fernandes by bailiff is not proper service. Having
gone through the copy of ration card, I found substance in the argument
of learned advocate for defendant No.4 that Celestine Fernandes does
not have any son by name Joyce Fernandes who is shown in the plaint
as defendant No.3. However, the question for consideration is whether
it can thereby be said that defendant Nos.2 and 4 are not served with
Notice of Motion No.291/2019 and Writ of Summons?
7. Bailiff reports show that Notice of Motion and Writ of
Summons have been served on defendant No.3 personally for herself
and on behalf of defendant Nos.2 and 4. Bailiff reports show that
defendant No.3 has put her signatures about service of Notice of Motion
and writ of summons. It is true that Joyce Fernandes is not the son of
Celestine and as such, there is no question of his being brother of
defendant Nos.2 and 4. However, bailiff reports show that Notice of
Motion and Writ of Summons are served on Mrs. Joyce Fernandesand
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not on Mr.Joyce Fernandes. Bailiff has mentioned in the report that
Notice of Motion and Writ of Summons are served on defendant No.3
and who accepted service for herself and on behalf of defendant Nos.2
and 4. In the affidavit filed in support of Notice of Motion, defendant
No.4 himself has clarified that Mrs.Joyce Fernandes is the wife of
defendant No.2. Apparently, as per the own contentions of defendant
No.4, said Mrs.Joyce Fernandes is the adult member of the family of
defendant Nos.2 and 4. There is yet another reason for reaching to the
said conclusion. In the copy of the ration card produced on record by
defendant No.4 himself, name of Mrs.Joyce Fernandes is available as
daughter in-law of Celestine Fernandes.
8. Defendant No.4 has contended in his affidavit that even
though Joyce Fernandes is the name of wife of defendant No.2, she
resides at Goa and she was not available in Mumbai when the service
was allegedly effected on her on 24/01/2019. Defendant No.4 has
produced copy of PAN card issued in the name of Joyce Fernandes but
absolutely no material is produced to show that said Joyce Fernandes
was at Goa and she was not available in Mumbai on 24/01/2019.
Furthermore, any specific statement is not made by the defendant No.4
in his affidavit and rejoinder that signatures on bailiff reports are not of
Mrs.Joyce Fernandes. Defendant No.4 has not filed affidavit of said
Joyce Fernandes to the effect that she has not accepted service and
signatures on bailiff reports are not of her. So far as the argument of
learned advocate for defendant No.4 that service was made by the
bailiff on defendant No.3 on road is concerned, even though there is
substance in his said submission, since defendant No.4 has not filed
affidavit of Joyce Fernandes for denying that she is not served by the
bailiff and signatures on bailiff report are not of her, much importance
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cannot be given to the fact that service was effected by the bailiff on
road. Having regards to those aspect, this court is of the opinion that
material available on record is sufficient for accepting that signatures on
the bailiff report are of defendant No.3 Joyce Fernandes and she has
accepted the service of Notice of Motion No.291/2019 for herself and
on behalf defendant Nos.2 and 4.
9. Learned advocate for defendant No.4 submitted that
defendant No.4 has placed on record voluminous documents to show
that suit premises was in possession of father Celestine of defendant
Nos.2 and 4 as a tenant since 1977 onwards till his death which took
place in year 2012 and after the death of Celestine, defendant Nos.2
and 4 were always in use, occupation & possession of the suit premises.
He submitted that defendant No.4 had been to Goa in November 2019,
defendant No.2 was also out of Mumbai and taking disadvantage of
their absence, plaintiff has put his own lock on the suit premises by
removing the lock of those defendants. It would be apposite to mention
here that defendant No.4 has contended at one place in the affidavit
filed in support of Notice of Motion that plaintiff has obtained order of
temporary injunction from the court & thereafter illegally dispossessed
the defendants whereas, he has contended at the another place that
plaintiff has put his lock first on the suit premises by taking
disadvantage of absence of defendant Nos.2 and 4 and thereafter
obtained order of temporary injunction from this court by playing fraud.
Apparently, defendant No.4 has raised self contradictory statements in
that regard in the affidavit filed in support of the Notice of Motion.
10. Defendant No.4 has placed on record report of handwriting
expert in respect of memorandum of agreement and memorandum of
understanding placed on record by the plaintiff for claiming that
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Celestine has surrendered tenancy rights in respect of the suit premises
in favour of the plaintiff. Said report of handwriting expert is favourable
to defendant No.4. Plaintiff has also placed on record report of
handwriting expert in respect of the same documents. Said report is
favourable to the plaintiff. Even though, both parties have placed on
record the reports of handwriting expert which are in their respective
favour, it appears that either of them had not forwarded original
documents to the handwriting expert. It appears that copies of the
disputed documents were sent to handwriting expert hence it would not
be just to place reliance on either of the two reports of the handwriting
expert produced on record by them.
11. Defendant No.4 has placed on record copy of death
certificate of Celestine, copies of rent receipts, copies of electricity bills,
copies of election ID card and Adhar cards. Those documents are denied
to be true by the plaintiff. Even if those documents are accepted to be
favourable to defendant No.4, it is an admitted fact that any of those
documents were not available for consideration when Notice of Motion
No.291/2019 was allowed by my learned Predecessor as per the order
dtd.06/11/2019. Since this court found that defendants were properly
served with the Notice of Motion, it is clear that defendant Nos.2 to 4
themselves were at fault in not appearing before this court to contest
the said Notice of Motion hence, the copies of documents mentioned
above placed on record by defendant No.4 are not sufficient and helpful
for recalling the order dtd.06/11/2019 passed by this court in Notice of
Motion No.291/2019.
12. So far as the prayer made for setting aside
ex-parte order
dtd.14/08/2019 against defendant No.4 is concerned, as mentioned
earlier, material available on record shows that defendant No.4 was
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properly served with Writ of Summons on 24/01/2019. It is clear that
defendant No.4 has not filed Written Statement within statutory period
of 30/90 days from the date of service of Writ of Summons however, it
does not appear that defendant No.4 has attempted to take any
disadvantage by not remaining present before the court despite service
of Writ of Summons. Having regards to it, this court is of the opinion
that for giving fair opportunity to defendant No.4 to contest the suit on
merits, it would be in the interest of justice to set aside the
exparte
order dtd.14/08/2019 passed against him in the suit though, he is not
entitled for setting aside the order dtd.06/11/2019 passed in Notice of
Motion No.291/2019. Thus, an order.
O R D E R
Notice of Motion No.104/2020 is partly allowed as under;
Order dtd.14/08/2019 passed in the roznama to proceed
with the suit
exparte against defendant No.4 is hereby set aside
and defendant No.4 is permitted to file his written statement.
Defendant No.4 shall file his written statement on next date
without fail.
Pending final disposal of the suit, plaintiff or anybody
claiming through him shall not create third party interests in the
suit premises in any manner.
Date : 06/12/2021. (P.P.RAJVAIDYA)
Dictated on : 06/12/2021. Judge, C.R.No.62,
Checked on : 06/12/2021. City Civil Court,
Signed on : 07/12/2021. Mumbai.
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER”
09.12.2021 at 5.15 p.m. Mrs.Rupali S. Bhor
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge(with CR No.) HHJ SHRI. P.P.RAJVAIDYA
(C.R.No.62)
Date of pronouncement of Order 06/12/2021
Order signed by P.O. on 07/12/2021
Order uploaded on 09/12/2021
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