Final Order 1

Order Details: Notice of Motion
Pdf Text: 1
IN THE BOMBAY CITY CIVIL COURT AT GREATER BOMBAY
Notice of Motion NO.287 of 2018
In
L.C.Suit No.181 of 2016
MHCC010013062018
Mr. Baitullah Ayub Shah ..Plaintiff
V/s
Mohd. Junaid Harun Shah ..Defendants
& another
Advocate J.P. Mishra for plaintiff
Adv Vivek Singh for defendant no.1
Advocate Khandagale for defendant /MMC
CORAM : HIS HONOUR JUDGE
SHRI. G.B.GURAO
DATE : 13th November 2018
(Court Room No.06)
O R D E R
1 Defendant no.1 has taken out this notice of Motion to stay
the hearing and trial of the present suit and notice of motion till the
hearing and final disposal of the suit i.e. Suit no. 3001/2014 filed by
defendant no.1 and pending in Court room no.3 in the Bombay City
Civil Court.
Facts in Brief are as under:
2 According to the defendant no.1, he has filed the suit
bearing suit no. 3001/2014 before this Court against the plaintiff for
the same cause of action. The same suit is pending in Court room no. 3
and the stage of the suit is for filing evidence affidavit. Defendant no.1
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has filed the said suit for relief of declaration and injunction of the
same subject matter i.e. Sugar Cane stall having license No. TMP
10762/MDF/6095 situate at opp plot no. 50, Sion Circle, Mumbai. The
Stall runs under the name and style of 'Gulshan Juice Center'. The
present suit filed by plaintiff is for the same relief against him.
Defendant no.2 Municipal Corporation, Gr. Mumbai is merely a formal
party.The plaintiff in this suit has appeared in the earlier suit no.
3001/2014 and filed the written statement. Therefore to avoid the
multiplicity of the litigation it is necessary to stay the present suit till
the disposal of suit no. 3001/2014. Hence, prayed to allow the notice
of motion
3 Plaintiff filed his affidavit in reply of the notice of motion.
According to plaintiff, there are different prayers in both the suits.
Plaintiff has filed present suit that the license of the 'Gulshan Juice
Center' cannot be declared in favour of the defendant on the basis of
forged and fabricated documents. Thus the license is required to be re
transferred in the name of plaintiff. Hence, prayed to dismiss the
notice of motion.
4 Shri Vivek Singh advocate for defendant no. 1 has
submitted that the earlier suit bearing no. 3001/2014 is pending
between the parties. Defendant no.2 in the present suit is formal
party . The subject matter is the same. Therefore, it is necessary to stay
the hearing of the present suit and notice of motion till the decision of
suit no. 3001/2014. He further submitted that if the present suit is not
stayed then there is possibility of different findings by two Courts and
accordingly he prayed to allow the notice of motion.
5 Shri J.P.Mishra advocate for plaintiff has submitted that
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the prayers in both suits are different. In the present suit plaintiff has
sought the relief to direct the defendant no.2 Municipal Corporation to
retransfer the license in the name of plaintiff. Defendant no.1 has got
transferred the license on the basis of false and fabricated documents.
Hence, prayed to dismiss the notice of motion.
6 As per section 10 of the Civil Procedure Code no court
shall proceed with the trial of any suit in which the matter in issue is
also directly and substantially in issue in a previously instituted suit
between the same parties, or between parties under whom they or any
of them claim litigating under the same title where such suit is pending
in the same or any other Court in(India) having jurisdiction to grant
the relief claimed, or in any Court having jurisdiction to grant relief
claimed.
7 L.C.Suit No 3001/2014 is filed by defendant No. 1against
the plaintiff. The said suit is pending in Court room no.3 . The present
suit is filed by plaintiff against the defendant(Plaintiff in suit no.
3001/2014). In both the suits subject matter is a stall i.e. sugarcane
crushing licence bearing licence no.TMP 10762/MDF/6095 situate at
opp plot no. 50, Sion Circle, Mumbai. Thus in both suits the parties and
subject matter is the same.
8 In suit no. 3001/2014, plaintiff (defendant in the present
suit) has come with a specific case that he paid an amount of Rs.
8,00,000/ to the defendants (Plaintiff in the present suit) defendant
executed documents in his favour. However, defendant filed false
complaint against him in the police station. Plaintiff in suit no.
3001/2014 has sought declaration that defendant has no right, title
interest in the suit stall and also sought perpetual injunction
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restraining the defendants from interfering the possession of the
plaintiff of the suit stall. Admittedly in that suit defendant filed written
statement and denied the contention made in the plaint. Admittedly,
now the said suit for the evidence.
9 Thereafter, plaintiff has filed the present suit and
contending that he is bonafide licence holder of the said stall.
Defendant no.1 is his nephew. Defendant no.1 has prepared false and
fabricated documents and got transferred the said stall in his name.
Therefore, plaintiff prayed to declare that the documents i.e. agreement
for sale, Power of Attorney ,no objection are null, void and bad in law.
Plaintiff further prayed to direct the defendant no.2 Municipal
Corporation, Gr. Mumbai to retransfer the sugarcane stall in his favour
and also sought relief of perpetual injunction from obstructing the
possession of the suit premises.
10 Thus, in both the suits as discussed in supra the parties are
same, subject matters are same. The contention of parties is also same.
Both are claiming title of the subject matter. Therefore, the issue in
respect of the right and title of the suit stall is under consideration
before Ld. Court room no. 3. Therefore, if the said suit is proceeded
then there is possibility of different findings by both the Courts. Hence,
in view of the provisions of section 10 of CPC, it is necessary to stay
hearing of the present suit. Accordingly, I pass the following order:
ORDER
1 Hearing and trial of the present suit (Suit No 181/16)
is hereby stayed till the decision of the suit no.
3001/2014 pending in Court room no. 3 in Bombay City
Civil and Sessions Court.
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2 Notice of motion no. 287/18 disposed of accordingly.
(G.B.Gurao)
Judge,
City Civil Court, Gr. Bombay.
Dictated on : 13/11/2018
Typed on : 15/11/2018
Signed by HHJ. : 16/11/2018
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“ CERTIFIED TO BE TRUE AND CORRECT COPY OF THE
ORIGINAL SIGNED JUDGMENT/ORDER.”
21/11/2018
S.D. Raje
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
(H.G.)
Name of the Judge (with Court
Room No.)
Shri. G.B.Gurao
(CR.No.06)
Date of Pronouncement of
JUDGEMENT/ORDER
13/11/2018
JUDGEMENT/ORDER signed by
P.O. on
16/11/2018
JUDGEMENT/ORDER uploaded
on
21/11/2018
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