Final Order 1

Order Details: Notice of Motion
Pdf Text: NM No.2082020 ORDER 1
MHCC010005262020
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO.208 OF 2020
IN
SUMMARY SUIT NO.6456 OF 2006
(HIGH COURT SUIT NO.1570 OF 2006)
Smt. Sabita Vishwanath Adapa … Plaintiff
Vs.
Ashok Thimayya Shetty & ors. … Defendants
Appearances:
Ld.Adv.Mr.Prabhakar Shetty for plaintiff.
Ld.Adv.Ms.Apurva Kulkarni for Defendants.
CORAM : HER HONOUR ADHOC JUDGE
SMT. C.V. PATIL
(C.R.NO.15)
DATE : 29th November 2021
ORDER
1. This Notice of Motion is filed by defendant no.1 with regard to
the property mentioned in para 2 clause 1 of the plaint. He submitted
that the issue to that property needs to be stayed till the hearing and
final disposal of the Testamentary Suit No.987/2006. That suit is for
grant of probate of Smt.Yamunabai Shetty. Alternatively, the defendant
no.1 has also claimed to stay the suit under Section 10 of Civil
Procedure Code. It is the submission of defendant no.1 that the plaintiff
has filed suit for 4 properties. Those properties are described at Serial
-- 1 of 4 --
NM No.2082020 ORDER 2
no.1 to 4 in para 2 of the plaint. It is statement of defendant no.1 that
the property no.1 described in plaint is already bequeathed to him by
his late mother Yamunabai. Therefore, plaintiff is not entitled to ask any
relief against that property. So far as property no.2 is concerned that is
5 shops have been transferred in plaintiff's name by order of MHADA
Officer. That transfer was challenged by her late Father in Writ Petition
No.2398/2001. The Hon'ble High Court in Writ Petition directed to the
Estate Officer to give hearing to the petitioner and decide the matter.
Therefore, this Court has no jurisdiction to decide issue about said
property. Regarding other two properties the suit cannot be proceeded
ahead. Therefore, it is necessary to stay the suit atleast for property
no.2A and 2B as described in para 2 of the plaint.
2. Plaintiff has filed reply to the motion it is the submission of
plaintiff that defendant no.1 is adopting delaying tactics by hook and
crook. Already Notice of Motion No.3000/07 has been disposed of on
12/3/2018. In that Notice of Motion defendant no.1 has asked similar
kind of relief that to adjourn the suit sine die till the hearing of Probate
Petition. Thereafter the plaintiff was cross examined. His evidence is
closed, now the suit has been kept for evidence of defendant no.1 but
just to prolong the suit defendant no.1 is moving such kind of Notice of
Motions.
3. Heard learned advocates of respective parties. Advocate of
plaintiff has given much emphasis on earlier order of this Court dated
12/3/2018 in Notice of Motion no.3000/17. I have gone through the
order of this Court, in that order findings regarding to keep the suit in
sine die is rejected. It is also finding of this Court that probate petition
and proceedings before this Court are separate and independent. While
-- 2 of 4 --
NM No.2082020 ORDER 3
disposing that Notice of Motion this Court has framed additional issues
in the same Notice of Motion as per request of the defendant. Now, also
defendant no.1 has asked similar kind of relief that to stay the suit till
the decision of probate petition. Alternatively, he has also requested
stay under Section 10 of the Civil Procedure Code. This Suit has been
filed in the year 2006. It is filed on 10/6/2006 but it is the statement of
plaintiff that probate proceeding is after this suit. Therefore, the
question of application of Section 10 of CPC to the suit will not arise.
Regarding the stay of suit till the decision of probate petition the
advocate of defendant relied upon the citation of Hon'ble Supreme
Court in Nirmala Devi Vs. Arun Kumar Gupta and Others (2005)12
Supreme Court Cases 505, in which the Hon'ble Supreme Court has
transferred probate proceeding with Civil Suit. As per observation of the
Hon'ble Supreme Court the proceeding from Sub Judge was transferred
to District Judge . Here probate proceeding is pending before Hon'ble
High Court. This Court is subordinate to Hon'ble High Court therefore,
so far as the question of transfer is concerned it is not applicable to this
Court. Therefore with due respect citation is not applicable to the facts
and circumstances of relief claimed by the defendant no.1.
4. Already this Court has given finding in Notice of Motion
No.3000/17 that there is nothing to keep the suit in sine die because
probate proceeding and this suit are separate and independent. Again it
is not necessary to consider the similar kind of relief from the side of
defendant no.1. On the other hand, the Roznama in the proceeding
disclose that defendant no.1 has taken every step that is request to
frame additional issues, request to direct plaintiff to prove documents
etc. Now, after closing the evidence of the plaintiff suit was kept for
evidence of defendant no.1. At this stage. he has moved again similar
-- 3 of 4 --
NM No.2082020 ORDER 4
kind of Notice of Motion which has been already disposed of on
12/3/2018. When the defendant no.1 is constant regarding relief of
stay of this proceeding till the decision of probate proceeding then it is
not understood why he has not challenged the finding of this Court in
Notice of Motion No.3000/17. Accordingly this Notice of Motion has no
merit, substance and needs to be dismissed. Hence, following order:
ORDER
1. Notice of Motion No.208 of 2020 stands dismissed.
2. Notice of Motion No.208 of 2020 stands disposed
of accordingly.
(C.V. PATIL)
Adhoc Judge,
Date : 29/11/2021 City Civil Court, Gr. Bombay
Dictated on : 29/11/2021,
Transcribed on : 02/12/2021,
HHJ signed on : 06/12/2021
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE
ORIGINAL SIGNED JUDGMENT/ORDER.”
Upload Date Upload Time Name of Stenographer
06/12/2021 4.40p.m. Mrs.Jyoti Mane
Name of the Judge (With Court Room No.) HHJ Smt. C.V.Patil (CR
15)
Date of Pronouncement of
JUDGEMENT /ORDER
29/11/2021
JUDGEMENT /ORDER signed by P.O. on 06/12/2021
JUDGEMENT /ORDER uploaded on 06/12/2021
-- 4 of 4 --