Final Order 1

Order Details: Other
Pdf Text: 1/6 Rew. Petn.52/19 in NM No.4346/18 in Su.778/2009
IN THE BOMBAY CITY CIVIL COURT, AT MUMBAI
REVIEW PETITION NO. 52/2019
CNR No. : MHCC010015972019
IN
NOTICE OF MOTION NO.4346/2018
IN
SUIT NO.778 OF 2009
Shri. Mahesh Dharamshi Chande
….Applicant / Orig. Deft. No.6
In the matter between
Shri. Mohanlal Damji Powani and Ors. ...Plaintiffs
V/s.
The Charity Commissioner & Ors. ...Defendants
Adv. Giriraj for plaintiffs.
Adv. Pai for defendants no.3 & 6.
CORAM : HHJ Shri. G.R. Agrawal
CR No.3
DATED : 8.4.2019.
ORDER
(Dictated in open court)
By this petition, the applicant/original defendant no.6 is seeking
review of order dated 3.1.2019 passed in N/M no. 4346/2018.
2. The applicant has filed written submissions and both the parties
have made oral submissions. Heard Ld. Counsel for the parties. Perused
the record.
3. By order dated 3.1.2019 this Court had dismissed the N/M
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no.4346/2018 filed by original defendant no.3. By the said motion, it
was prayed to compel the witnessPW1 to answer some questions and
to produce documents mentioned in the questions and on failure of
witness to answer said questions or produce the documents, he be
detained in Civil prison or to pronounce Judgment against him or to
make such order in relation to suit as this court may think fit.
4. The Ld. Counsel for applicant has urged the following points in
support of the review petition :
i). That the impugned order was based on the finding that there was
delay in filing the notice of motion.
ii) Delay would not be relevant consideration since N/M is filed during
the trial and not before trial has commenced.
iii) There was no delay on the part of applicant since Court
Commissioner has filed his report on 10.7.2018 and before that his
report was not a part of record and it was not accepted by this Court
under Order XVIII Rule 4(3) of C.P.C.
iv) There was delay because on 10.7.2018, this Court had raised the
question “whether this matter can be reassigned to C.R. No.12” as
Charity Commissioner is party to the present suit. Defendants had filed
transfer application which was rejected by order dated 26.11.2018.
Prior to said order, defendant no.3 had filed N/M no.4346/2018 on
19.11.2018.
v) There is no limitation prescribed for such a motion and hence there
is no question of delay in filing it and the observations and findings
regarding delay in filing the notice of motion are apparent errors on
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the face of record and no provision is relied upon to show how delay is
calculated.
vi) This Court did not consider the submissions of applicant to
pronounce the Judgment against witness under Order XVI Rule 20 of
C.P.C. and no findings have been recorded on that submissions.
vii) The relevancy of questions are not considered properly by this
Court.
viii) Any person aggrieved by Order can file a review under section
114 and Order XLVII Rule I of C.P.C.
5. The Ld. Counsel for plaintiffs has opposed the review petition on
the following grounds :
i) That the review petition is not tenable in law since the original
motion was filed by defendant no.3 and the present review petition is
filed by defendant no.6.
ii) That the applicant is trying to reopen the Notice of motion and is
indirectly seeking rehearing of the motion.
iii) This Court has exercised discretion and rejected prayer made in the
motion and therefore review jurisdiction cannot be exercised in such a
case.
iv) All the grounds urged by the applicant are grounds for appeal and
not for review.
6. The first submission of the Ld. Counsel for applicant that delay
would be a relevant consideration in a pretrial motion for interim relief
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and it would not be relevant when motion is filed during the trial is
fallacious and has been made in total ignorance of law. The whole
object of enacting the Amendment Acts in Code of Civil Procedure in
the year 1999 and the year 2002 was to curtail the delay at various
stages of trial. The statement of object and reasons for enacting the
Amendment Act of 2002 states that the 1999 Amendment was enacted
by Parliament with a view to cut short the delays at various levels. It is
the duty of a Civil Court to ensure that interlocutory applications filed
belatedly are not entertained without sufficient cause being made out
by the parties. For instance, the amendment to Order 6 Rule 17
provides that no application for amendment would be allowed after
the trial has commenced, unless the Court comes to the conclusion that
in spite of due diligence, the party could not have raised the matter
before the commencement of trial.
7. Similarly, Order 18 Rule 4 has been substituted and examination
inchief of witness is permitted to be filed on affidavit. Thus, the sole
purpose of introducing the amendments of 1999 and 2002 is curb delay
at various stage of trial. The submission of Ld. Counsel for applicant
that no limitation is provided in law for such motions is totally
misconceived and devoid of merit. It is the duty of Court to ensure that
the trial is proceeded expeditiously and every attempt to delay the trial
is defeated. This Court has already given finding in the impugned order
that the motion was filed by the defendant no.3 only with an intention
to delay the proceedings.
8. The reasons submitted by Ld. Counsel for applicant to show that
there is no delay in filing N/M no. 4346/2018 cannot be accepted as
valid reasons in law. The applicant was not prevented by any of those
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reasons from filing the motion. Whether the report of Commissioner
was submitted before this Court, whether the matter could be re
assigned to C.R. No.12 and the pendency of transfer application have no
bearing on the filing of the N/M no. 4346/2018. The Ld. Counsel for
applicant could not point out how and why the said contingencies
prevented the applicant from filing the motion and making the prayer
which was made in the motion. The reasons put forth for filing the
motion after about one and half years are liable to be rejected.
9. The interpretation of Order 16 Rule 20 made by the Ld. Counsel
for the applicant is a misinterpretation of the provision. The
consequence of refusal of party to give evidence as per said provision is
that “Court may pronounce Judgment against said party”. The Ld.
Counsel has submitted that “pronouncement of a Judgment” against the
party means pronouncement on the “character of the witness”. This
interpretation is misconceived and contrary to Law. It does not merit
any consideration. Hence the submission of Ld. Counsel for applicant
that the prayer based on said provision was not considered is liable to
be rejected. He could not point out any authority in support of his
novel interpretation. It is pertinent to mention here that the
defendants have not filed any notice to produce documents against
plaintiff as per the provisions of C.P.C.
10. The other grounds urged by the Ld. Counsel for applicant
regarding relevancy of questions and power to detain in civil prison
cannot be considered in review jurisdiction. The applicant is trying to
reopen the hearing of the N/M 4346/2018 again on merits which is
not permissible in law. It is well settled that even an erroneous order
cannot be set aside in review jurisdiction, unless there is error apparent
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on the face of record. No such error is pointed out which may warrant
exercise of review jurisdiction. The applicant has failed to make out
any case for review of order dated 3.1.2019. Hence the following
order.
ORDER
Review petition no. 52 of 2019 is dismissed.
(G.R. Agrawal)
Judge
City Civil Court,
Dictated on : 8.4.2019 Gr. Bombay.
Transcribed on : 16.4.2019
Signed on : 16.4.2019
“CERTIFIED TOBE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER”
16.4.2019 at 5.50 pm (Mrs. S. W. Tuscano)
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (with Court
room no.)
HHJ Shri G. R. Agrawal, C.R.
No.3
Date of Pronouncement of
JUDGMENT/ORDER
8.4.2019
JUDGMENT/ORDER signed by
P.O. on
16.4.2019
JUDGMENT/ORDER uploaded
on
16.4.2019
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