Final Order 1

Order Details: Notice of Motion
Pdf Text: CNR NO.MHCC01-001084-2019
IN THE CITY CIVIL COURT FOR GREATER BOMBAY
AT BOMBAY
CHAMBER SUMMONS NO.416 OF 2019
IN
S.C. SUIT NO.334 OF 2014
1. Shendurjane (Madhali Ali) & Ors. ]....Interveners.
In the Matter Between
Laxman D. Jagtap ]....Plaintiff.
Versus
1. Shendurjane (Madhali Ali) & Ors. ]... Defendants.
CORAM : HIS HONOUR JUDGE
SHRI A.N. MARE
(C.R. No.09)
DATE : 4th April, 2019.
Mr. P.P. Killedar, Advocate for interveners.
Mr. B.K. Raje, Advocate for plaintiff.
O R D E R
1. By this Notice of Motion the Interveners have sought returning of
plaint to the plaintiff to present it before the appropriate forum as the
dispute relates to the alleged Trust property and to hold that the suit is
barred by Section 11 of Code of Civil Procedure.
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2. The contention of Interveners in the Notice of Motion is that they
have taken out Chamber Summons to implead them in the present suit.
The provisions of Bombay Public Trust Act are attracted in this case and
therefore the present dispute should be before the Charity Commissioner.
The subject matter in this suit is already dealt with and decided by the
Small Cause Court and so the suit is barred by principle of Resjudicata.
3. In his reply the plaintiff has contended that such Notice of Motion
is not maintainable unless the Interveners are made parties to the suit.
Considering the earlier history of litigation the Interveners cannot be
party to present suit. The grounds mentioned in the Notice of Motion
are not attracted and hence Notice of Motion be dismissed.
4. Perused the written notes of arguments filed by the applicants in
Notice of Motion. Heard the Advocate for plaintiff.
5. It needs to be mentioned that the Chamber Summons No.211 of
2018 was taken out by these Interveners/applicants for their
impleadment as defendants in the suit. The same came to be rejected by
this Court.
6. A Notice of Motion for return of plaint or for dismissal of suit on
the ground of Resjudicata is maintainable at the instance of defendants
and not by the applicants who are not the party to the suit. In view of
rejection of Chamber Summons No.211 of 2018, this Notice of Motion is
rendered not maintainable. Accordingly, I pass the following order:
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ORDER
1. Notice of Motion No.416 of 2019 is dismissed.
2. No order as to costs.
Sd/
(A.N. MARE)
Judge,
04/04/2019 City Civil Court, Mumbai.
Dictated On : 04.04.2019
Transcribed on : 04.04.2019
HHJ Signed on : 04.04.2019
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF
THE ORIGINAL SIGNED JUDGMENT/ORDER.”
Upload Date Upload Time Name of Stenographer
04.04.2019 05.25 p.m. V.U. Pawar (H.G.)
Name of the Judge (With Court
Room No.)
HHJ SHRI A.N. MARE
(CR 09)
Date of Pronouncement of
JUDGEMENT /ORDER
04.04.2019
JUDGEMENT /ORDER signed by
P.O. on
04.04.2019
JUDGEMENT /ORDER uploaded
on
04.04.2019
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