Final Order 1

Order Details: Notice of Motion
Pdf Text: N. M. No. 374/2020 Order
MHCC010008422020 Presented on : 22.01.2020
Registered on : 22.01.2020
Decided on : 07.10.2025
Duration : 05 08 16
Years Months Days
IN THE COURT OF CITY CIVIL FOR GREATER BOMBAY AT BOMBAY
NOTICE OF MOTION NO.374/2020
(CNR NO. MHCC010008422020)
IN
SHORT CAUSE SUIT NO.416/2017
Mr. Anotnio P. Fernandes and another … Plaintiffs
Versus
Mr. Joe Rodrigues … Defendant
CORAM : HIS HONOUR JUDGE, A. C. DAGA
: COURT ROOM NO. 61
DATE : 07.10.2025
Appearances: -
Adv. Amol Tembe for Plaintiff No.1.
None for Plaintiff No.2.
None for Defendant.
ORDER
(Dictated and pronounced in open Court)
Instant Notice of Motion is filed by the Defendant under
Order VII, Rule 11 (a) of the Code of Civil Procedure for rejection of the
plaint for want of cause of action. It is pleaded in the Notice of Motion
that the plaint does not disclose any cause of action against the
Defendant. The Defendant is a member and also Chairman of the
Society namely Casa Blanca Co-operative Housing Society Ltd., Plot
No.480, 13th Road, Chembur, Mumbai - 400071. Being Chairman,
Defendant is looking after day-to-day management and affairs of the
Society and its maintenance. This Court, while passing Order dated
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N. M. No. 374/2020 ... 2 … Order
23.10.2018 in Notice of Motion No.916/2017 has observed that the
dispute appears to be between the Plaintiff and the Housing Society.
The Defendant only acted as office bearer of the said Society. The
Plaintiff has not impleaded such a Society as the Defendant and all
these acts have been done by the Defendant in the capacity of the
Chairman of the Society. As such, the Plaintiff is having grievances
against the Society and not against the Defendant in his personal
capacity. Accordingly, suit is not maintainable against this Defendant as
there is no cause of action disclosed against the Defendant in the plaint.
Hence, the Notice of Motion.
2. Plaintiff No.1 contested the Notice of Motion by filing Reply
and has denied each and every adverse plea raised in the Notice of
Motion. It is pleaded that cause of action is against the Defendant and
that is specifically pleaded in the plaint, hence prayed for rejection.
3. I have carefully gone through the record. It is a settled
position of law that while deciding the Notice of Motion under Order
VII, Rule 11(a), pleadings in the plaint are required to be given literal
meaning and nothing foreign to the plaint can be added to it. As such,
though in the Notice of Motion No.916/2017 it is pleaded that the
disputes appear to be between the Plaintiff and the Society and
Defendant only acted as office bearer of the Society, fact remains that
while deciding that Notice of Motion, this Court has not concluded that
there is no cause of action for filing of suit against the Defendant.
4. On perusal of the pleadings in the plaint, it appears that
there is specific pleading in paragraph No.14 that, “the defendant has
been harassing the plaintiffs with the ulterior motive of gaining a
parking space for himself”. In paragraph No.15 it is specifically pleaded
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N. M. No. 374/2020 ... 3 … Order
that, “the letter dated 13.08.2016 which is signed only by the
Defendant purportedly on behalf of the Society”. In paragraph No.16 it
is pleaded that, “the plaintiffs apprehending that in furtherance of the
high-handed approach adopted, the defendant would park his vehicle.”
In prayer clause also all the prayers are against the Defendant and not
the Society. As such, considering the pleading and prayer clause in the
plaint, it appears that prima-facie sufficient cause is made out for
proceeding with the suit against the Defendant. As such, it cannot be
said that no cause of action is disclosed in the plaint against the
Defendant. Accordingly, no case is made out for rejection of Plaint
under Order VII, Rule 11 of the Code of Civil Procedure. As such, I pass
the following Order: -
ORDER
1. Notice of Motion is rejected.
2. Accordingly, Notice of Motion No.374/2020 stands disposed off.
DATE: - 07.10.2025 (A. C. DAGA)
JUDGE, CITY CIVIL COURT,
GR. MUMBAI.
Dictated on : 07.10.2025
Transcribed on : 07.10.2025
Checked on : 07.10.2025
Signed on : 07.10.2025
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N. M. No. 374/2020 ... 4 … Order
"CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER"
DATE: 07.10.2025, AT 05.16 P. M. Siddhesh S. Shirke
STENOGRAPHER (GRADE-I)
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (with Court
no.) :
SHRI A. C. DAGA, (C. R. NO.
61)
Date of pronouncement of
Judgment/Order : 07.10.2025
Judgment/Order signed by the P.
O. on : 07.10.2025
Judgment/Order uploaded on : 07.10.2025
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