Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM no. 113-20 in S.C.SUIT no.3271-13
IN THE CITY CIVIL COURT FOR GREATER BOMBAY
AT MUMBAI.
NOTICE OF MOTION NO. 113 OF 2020
(CNR no. MHCC010002992020)
IN
SHORT CAUSE SUIT NO. 3271 OF 2013
Mr. Popatlal Babulalji Sanghvi ]....Plaintiff
V/s
Shree Laxmi Vijay Printing Press ]....Defendants
Appearances:
Ld. Advocate Mr. Jain for the Plaintiff.
Ld. Advocate Mr. Mehta with Advocate Shukla for the Defendant.
CORAM : HIS HONOUR JUDGE
SHRI C.V. MARATHE
(Court Room no. 4)
DATED : 21st JANUARY, 2020.
O R A L O R D E R
1. By instant notice of motion the defendant has prayed to direct the
plaintiff to appropriately make valuation of the suit in accordance with
Section 6(v) of the Bombay Court Fees Act, 1959 (hereinafter 'the Act')
as per the market value of the suit premises and also prayed for an
enquiry for ascertaining the market value of the suit premises under
Section 8 r/w Section 9 of the above Act. According to ld. Advocate for
the defendant, the plaintiff has cleverly worded the prayer clauses in
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2 NM no. 113-20 in S.C.SUIT no.3271-13
the plaint claiming mandatory injunction for removal of the articles
from the common passage and preventive injunction restraining the
defendant from keeping any article in the said common passage and
these prayers in effect amount to prayer for possession of tenanted suit
premises in which case it is duty of the plaintiff to see that requisite
court fees are paid. According to ld. Advocate for the defendant if the
suit is valued as per Section 6(v) of the Act, the valuation will be more
than crores of rupees and the plaintiff has to pay the court fees
accordingly.
2. Ld. Advocate for the plaintiff has submitted that the
plaintiff has not claimed relief of possession or declaration in respect of
the suit premises and the suit is correctly valued as per residuary
provision of Section 6(iv)(j) of the Act. He has also alleged that the
defendant is filing such frivolous notice of motion to delay the matter.
3. I have gone through the plaint, contents of this notice of
motion and judgments cited by ld. Advocates for both sides. As can be
seen from the plaint, the plaintiff has prayed for mandatory injunction
against the defendant to direct him to remove unused materials, rock,
debris from the common passage/chowk of the ground floor in the suit
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3 NM no. 113-20 in S.C.SUIT no.3271-13
building and permanent injunction not to cause obstruction to the
plaintiff, their tenants/occupants by blocking the common
passage/chowk. After careful reading of these prayers, it cannot be said
that the plaintiff is claiming possession of the said common
passage/chowk. It is nowhere claimed in the plaint that the plaintiff
and other tenants have exclusive right over the common passage/chowk
and the right of the defendant is also not denied to use the said
common passage/chowk. Therefore the contention of the ld. Advocate
for the defendant that the suit is cleverly drafted to get relief of
possession by avoiding payment of huge court fees is without merits. In
the above backdrop, the citations relied upon by the defendant are not
applicable to the facts of this case.
4. As submitted by the ld. Advocate for the plaintiff, the
instant notice of motion is taken out after the matter is posted for cross
examination of the plaintiff. It is pertinent to note that on 11/07/2019
adjournment was granted to the defendant subject to cost of Rs.2,000/
to be paid to District Legal Services Authority and cost of Rs.1,000/ to
be paid to the plaintiff. Again on 14/11/2019 cost of Rs.10,000/ was
imposed upon the defendant for seeking adjournment and matter was
posted for crossexamination of plaintiff on 12/12/2019. Roznama
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4 NM no. 113-20 in S.C.SUIT no.3271-13
further shows that the plaintiff filed affidavit of examinationinchief on
03/05/2018 after issues were framed on 14/02/2018. This sequence of
events depicts that when prayers for adjournment by the defendant are
allowed subject to heavy cost, the instant notice of motion is filed at a
later stage to delay the main suit.
5. The defendant appeared for the first time in this
proceeding way back in 2014. Initially issue of jurisdiction was raised
but the issue of valuation and payment of court fees was never raised
for five years. Therefore on both the above counts, the notice of motion
will have to be dismissed and costs need to be imposed upon the
defendant for delaying the matter. Hence order :
ORDER
Notice of Motion No. 113/2020 is dismissed with cost of
Rs.2,000/ (Rupees Two Thousand Only) payable to District Legal
Services Authority by the defendant on or before next date.
(C. V. Marathe)
Judge,
Date : 21.01.2020. City Civil Court, Gr. Mumbai.
Dictated on : 21.01.2020.
Transcribed on : 21.01.2020.
Signed by HHJ on : 22.01.2020.
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5 NM no. 113-20 in S.C.SUIT no.3271-13
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE AND TIME : 22.01.2020 at 5.19 p.m.
NAME OF STENOGRAPHER : Miss M.A.Kulkarni.
Name of the Judge (With Court
Room no.)
HHJ Shri. C. V. Marathe
C.R. no.04
Date of Pronouncement of
JUDGMENT/ORDER
21/01/2020
JUDGMENT/ORDER signed by
P.O. on
22/01/2020
JUDGMENT/ORDER uploaded
on
22/01/2020
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