Interim Order 2

Order Details: Chamber summons
Pdf Text: Ch/s No. 1171/21 in Suit No. 122/21. 1 Order.
MHCC010070842021
Presented on : 23-09-2021
Registered on : 23-09-2021
Decided on : 19-10-2023
Duration : 2 years, 0 months, 26 days
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
CHAMBER SUMMONS NO. 1171 OF 2021
IN
SUIT NO. 122 OF 2021
Dr. Dnyaneshwar Namdeo Mahajan ...Plaintiff
Versus
Advocate Shri Vinod Natesan ...Defendant
Shri Ashok Saraogi, Advocate for the plaintiff.
Defendant in person.
CORAM : HIS HONOUR JUDGE SHRI S.D.KULKARNI.
(COURT ROOM NO.66).
DATE : 19th OCTOBER, 2023.
ORDER
1. The defendant in person has taken out the chamber
summons for rejection of plaint as per the provisions of Order VII Rule
11(a) and (d) of Code of Civil Procedure, 1908 read with Order I Rule
10 of the Code of Civil Procedure, 1908. Further defendant prayed that
till the hearing of the chamber summons, Notice of Motion No.
696/2021 and proceeding of the suit be adjourned.
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Ch/s No. 1171/21 in Suit No. 122/21. 2 Order.
2. It is alleged by the defendant that the plaintiff has
instituted the suit in the name of wrong person. The plaintiff in this suit
is not a proper person to litigate. There is no cause of action arose to
the suit. No civil right of plaintiff was infringed, therefore, suit is
deserved to be dismissed. The plaintiff could not pray relief for others,
therefore, plaint shall be rejected. It is further alleged by the defendant
that there is no allegations against the defendant that he has defamed
the co-operative housing society. Therefore, suit is bad for the violation
of the Co-operative Laws and plaint deserves to be rejected. The
allegation against the defendant have no merit in the matter. There is
no prima facie case established so as to proceed the suit. Thus, liable to
be rejected. Therefore, defendant prayed that suit be dismissed as it
does not disclose cause of action and suit is apparently barred by law.
Therefore, contention of the defendant that plaint be rejected by
allowing chamber summons.
3. The plaintiff filed the reply and opposed the chamber
summons. The contention of the plaintiff that present chamber
summons is not maintainable. Defendant has taken out the chamber
summons for dismissal of the suit, but as per City Civil Court Rules he
has to take out notice of motion. Filing of chamber summons is itself
bad. It is further alleged by the plaintiff that in the suit specifically
cause of action is mentioned. Whether plaintiff has right to sue, whether
the right of plaintiff infringe or not will get clear after adducing
evidence of both parties. So at this prima facie stage, plaint cannot be
rejected as per Order 7 Rule 11 of the CPC. It is further alleged by the
plaintiff that defendant wants to prolong the matter, therefore, filed the
chamber summons. Hence, prayed for rejection of the chamber
summons.
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Ch/s No. 1171/21 in Suit No. 122/21. 3 Order.
4. Perused chamber summons, affidavit in reply filed by the
plaintiff. Heard defendant in person, advocate for the plaintiff. I have
also gone through the written notes of arguments submitted by the
defendant, the authorities relied by the defendant.
5. The main contention of the defendant that the suit is not
maintainable as defamation is a personal right which is not transferable.
So plaintiff could not file suit on behalf of any of its advocate. The
another contention of defendant that there is no cause of action for the
plaintiff to file the present suit. Further submission of the defendant
that there is no defamation as alleged by the plaintiff. Therefore plaint
be rejected under Order 7 Rule 11 of the CPC. The defendant relied on
the ratio laid down in the case of Union of India V/s. Association for
Democratic Reforms & Another AIR 2002 Supreme Court 2112. Therein
the Hon’ble Apex Court held that -
“The aforesaid decision of the constitution bench
unreservedly lays down that in democracy the little man –
voter has overwhelming importance on the point and the
little-large Indian (voter) should not be hijacked from the
course of free and fair elections by subtle perversion of
discretion of casting votes. In a continual participative
operation of periodical election, the voter does a social
audit of his candidate and for such audit he must be well
informed about the past of his candidate. Further, Article
324 operates in areas left unoccupied by legislation and the
words ‘superintendence, direction and control’ as well as
‘conduct of all elections’ are the broadest terms. The silence
of statute has no exclusionary effect except where it flows
from necessary implication. Therefore, in our view, it would
be difficult to accept the contention raised by Mr. Salve,
learned Solicitor General and Mr. Ashwini Kumar, learned
senior counsel appearing on behalf of Intervenor that if
there is no provision in the Act or the Rules, the High Court
ought not to have issued such directions to the Election
Commission. It is settled that the power of the Commission
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Ch/s No. 1171/21 in Suit No. 122/21. 4 Order.
is plenary in character in exercise thereof. In a statutory
provisions or rules, it is known that every contingency
could not be foreseen or anticipated with precision,
therefore, Commission can cope with situation where the
field is unoccupied by issuing necessary orders.”
6. The defendant in person further relied on the ratio laid
down in the case of Shri Maulik Kotak and others V/s. The State of
Maharashtra and another (Criminal Writ Petition No. 64/2003 –
Judgment dated 19/06/2013).
7. On going through the written notes of arguments,
documents attached with the chamber summons, affidavit in support of
chamber summons, Order 7 Rule 11 of the CPC provision is available to
the defendant when suit is barred by any law or there is no cause of
action in filing the suit. On going through the plaint, it reveals that it
cannot be said that it is without cause of action. In para no.23 of the
plaint plaintiff has clearly mentioned cause of action arose on
30/11/2020. The contention of the defendant that suit is barred by
limitation but here in this case, there is no sufficient material to state
that suit is barred by law. The points raised by the defendant are mixed
question of facts and as such it cannot be considered while deciding
chamber summons without leading any evidence by the party. The
points raised by the defendant can be considered only during the trial.
Therefore, in my opinion, the present chamber summons is not
maintainable. There is no provision of rejection of plaint while deciding
chamber summons. Whether plaintiff’s right was infringed or not,
whether plaintiff is a right person to file the suit can only be ascertained
after adducing evidence by the parties. So, at this stage, without any
evidence on record, it cannot be concluded that plaintiff has no right to
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Ch/s No. 1171/21 in Suit No. 122/21. 5 Order.
file suit. The act of defendant does or does not fall under violation of
any law or whether the plaintiff is having civil remedy or not against
the defendant could be clear after evidence adduced by the parties. The
defendant in present chamber summons raised the point of
maintainability of the suit. But in my opinion for that evidence of the
parties is necessary. The defendant relied on certain authorities of
Hon’ble High Court and Hon’ble Apex Court, but all these authorities
are not helpful to him as because the facts in case at hand are different.
Thus, on the basis of chamber summons suit cannot be dismissed or
plaint cannot be rejected. Therefore, in my opinion, the defendant is not
entitled for the relief prayed. Considering this, I pass following order :
- ORDER -
1. Chamber Summons No. 1171/2021 stands rejected.
2. Ch/s No. 1171/2021 is disposed off accordingly.
(S.D.KULKARNI)
Judge,
City Civil Court,
(Court Room No.66)
Date : 19/10/2023. Mumbai.
1. Dictated online on : 19/10/2023.
2. Placed for correction on : 21/10/2023.
3. Checked on : 31/10/2023.
4. Correction carried on : 31/10/2023.
5. Signed on : 31/10/2023.
6. Delivered to Certified :
Copy Section on
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
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Ch/s No. 1171/21 in Suit No. 122/21. 6 Order.
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
31/10/2023. 5.36 p.m. Miss M.A.Kulkarni.
Name of the Judge (with Court Room no.) HHJ Shri S.D.Kulkarni.
(Court Room No.66).
Date of Pronouncement of Judgment/Order 19/10/2023.
Judgment/Order signed by P.O. on 31/10/2023.
Judgment/Order uploaded on 31/10/2023.
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