Final Order 1

Order Details: Notice of Motion
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IN THE BOMBAY CITY CIVIL COURT FOR GREATER MUMBAI
NOTICE OF MOTION NO.447 OF 2020
(CNR NO.MHCC010011292020)
IN
S. C. SUIT NO.2010 OF 2019
Mr. Babul Abdul Jabbar Ghazi )..Plaintiff
V/s.
Mr. Ziyaullah Anwarul Haque Shaikh ).. Defendant
Appearances :
Adv. Rajesh K. Thakur for plaintiff.
Adv. Ahmad Ali Khan for defendant.
CORAM : HIS HONOUR JUDGE
SHAIKH AKBAR SHAIKH JAFAR
COURT ROOM NO.03
DATE : 27/07/2022.
ORDER
1. This Notice of Motion is taken out by defendant contending
that the suit is not maintainable as per the provisions of Order 7 Rule
11 (a) of CPC. It is the contention that plaintiff is Bangladeshi national
and now, the defendant is in possession of the suit property. Hence,
there is no cause of action to file the suit.
2. Plaintiff appeared, filed reply and has denied the
contention of defendant. It is his contention that he is in possession
and defendant is trying to dispossess the plaintiff and prayed for
dismissal of the notice of motion.
3. Plaintiff & his Ld. Advocate found absent when called. The
Ld. Advocate for the defendant submitted the written notes of arguments.
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4. It is the contention of defendant that plaintiff is Bangladeshi
national, therefore, he has no right to claim any relief before this Court.
So also, he is not in possession of the suit property. Now, the defendant
is in possession of the suit property. Therefore, suit deserves to be
dismissed under the provisions of Order 7 Rule 11(a) of CPC.
5. While deciding the petition, under Order 7 Rule 11 of CPC,
the Court is required to ascertain the cause of action from the
averments of pleading. The documents filed by the defendant or his
defence cannot be taken into consideration. The averment of plaint
shows that in Para (13), the plaintiff has specifically claimed that cause
of action arose on 26/06/2019. In his plaint, he is categorically
narrated as to how the cause of action accrued to him. Thus, the
plaintiff has cause of action to file the suit.
6. So far as the nationality of the plaintiff is concerned, it is
the matter of evidence. At the time of evidence, defendant may adduce
the evidence in this regard and at this stage, it cannot be considered.
Consequently, I found the notice of motion deserves to be dismissed.
With this, I proceed to pass the following order :
ORDER
1. Notice of Motion No.447/2019 in Suit No.2010/2019, is hereby
dismissed.
2. Notice of Motion stands disposed off accordingly.
(Order dictated & pronounced in open Court)
(Shaikh Akbar Shaikh Jafar)
Judge,
City Civil Court, C.R. No.03
Dated : 27/07/2022 Greater Bombay
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Dictated on : 27/07/2022
Typed on : 27/07/2022
Signed on :
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“Certified to be true and correct copy of the original signed order”.
04/08/2022 (Mrs. Vidya Abhijit Mande)
at about 11.30 a.m. Stenographer (GradeI.)
Court Room No.03, Gr. Mumbai
Name of the Hon'ble Judge : Shaikh Akbar Shaikh Jafar,
Judge, City Civil Court &
Addl. Sessions Judge
Court Room No.03, Gr. Mumbai
Date of pronouncement of Order : 27/07/2022
Order signed by Hon'ble Judge on : 28/07/2022
Order uploaded on : 04/08/2022
at about 11.30 a.m.
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