Final Order 1

Order Details: Notice of Motion
Pdf Text: MHCC010018682019
CNR NO. MHCC010018682019
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO.722 OF 2019
IN
SUIT NO.9690 OF 1999
(HIGH COURT SUIT NO.6283 OF 1999)
Pawankumar Pratapsingh Thakur ]… Plaintiff.
V/s.
Usha Singh & Ors. ]... Defendants.
Appearances :
Ld. Adv. Mr. J.K. Shah for plaintiff.
Ld. Adv. Mr. Pankaj Shah for defendant.
CORAM : HIS HONOUR JUDGE
SMT. R.K. KSHIRSAGAR
(C.R.No.13)
DATED : 8th July, 2022
ORAL ORDER
1. The present Notice of Motion is taken out by the plaintiff
for recasting the issues dated 13.12.2018 vide Exhibit 4.
2. It was submitted by the plaintiff that the rival pleadings in
the plaint and written statement shows that there is a very narrow
dispute between the parties. The defendant had admitted various facts
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of the plaint. In the light of said admissions it is necessary to recast the
issues. There are certain issues which are not required and therefore,
some of the issues be deleted and some issues be recasted.
3. The plaintiff submitted that in respect of issue No.1 there is
no controversy between the parties with respect to the joint ownership
of the suit property. The defendants have admitted to have joint right
title and interest in the suit property. The mother of plaintiff and
defendant have died intestate and therefore, her share has now
devolved upon the plaintiff and original defendant. Therefore, there is
no dispute regarding issue No.1 and hence, issue No.1 be deleted.
4. In respect of issue No.2 the plaintiff submitted that the said
issue is not relevant since it is not the matter of the controversy and
therefore, the said issue be deleted.
5. In respect of issue No.3 the plaintiff submitted that the
plaintiff is having right to participate in the administration and
management of suit property. Since the defendant has not filed any
Counter claim. The plaintiff is admittedly a part owner and therefore,
he is having right to transfer the tenancy and hence, issue No.3 be also
deleted.
6. In respect of issue No.4 plaintiff submitted that there is no
mention in the written statement regarding the party who is not joined
and therefore, the said issue be deleted.
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7. Further the plaintiff submitted that there is no controversy
in respect of the statement of accounts of the trust property. Also the
plaintiff is entitled to have the accounts in respect of suit property and
therefore, issue No.6 be also deleted. It was submitted by the plaintiff
that the only dispute is regarding the management and administration
of trust property and therefore, the issues be recasted.
8. The defendants filed reply and denied the contention of
plaintiff. It was submitted that the Notice of motion is taken out to
delay the proceedings. It was further submitted that the defendant had
submitted draft issues and also submitted the copy to the plaintiff. The
plaintiff had not raised any objection on the draft issues and therefore,
the issues were settled. The defendant further submitted that the issues
are correctly framed. The contention of the plaintiff in stating that the
issues were admitted by the defendant is wrong. The defendant denied
the joint ownership over the suit property. The defendant further
submitted that the plaintiff has forged the original Trust Deed & now
when the burden is casted on the plaintiff, the plaintiff has filed the
present Notice of motion only to delay the proceedings. The defendant
further submitted that the issue No.4 be deleted. Similarly the issue
No.7 & 8 are also not required and thus issue No.7 & 8 be deleted. The
defendant further submitted that the issues are framed on the basis of
rival pleadings and therefore, there is no necessity to delete the same
and hence, the Notice of motion be dismissed.
9. Heard Learned Advocate for plaintiff and defendant at
length. The contents are not reproduced. The plaintiff is seeking the
deletion of issue No.1 to 3, 6 & 7. The plaintiff stated that the
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defendant has admitted the joint ownership and therefore, issue No.1, 3
be deleted. The defendant in his written statement and also in the reply
to the Notice of motion has denied the contention of the plaintiff. The
defendant has raised objection on the joint ownership of plaintiff and
defendant over the suit trust property. It therefore seems that the issues
framed are necessary to decide the real controversy between the parties.
Also in respect of issue No.2 the burden being casted upon the
defendant, it is for the defendant to prove the same and the plaintiff
does not ought to have any say in respect of said issue.
10. So far as issue No.4 & 7 are concerned, the defendant
submitted that the said issues are not required and hence, it can be
deleted. Issue No.5 is framed for entitlement to plaintiff for partition of
trust property and thus, issue No.5 & 6 are also correctly framed. It
therefore seems except issue No.4 & 7 all the issues are necessary and
are framed on the rival pleadings raised by both the parties. The said
issues are necessary to decide the real controversy and for the fair
adjudication of the matter on merits. Therefore, no case is made out for
recasting the issues except issue No.4 & 7. I, therefore, proceed to pass
the following order.
ORDER
1. 1.The Notice of Motion No.722 of 2019 is partly allowed.
2. Issue No.4 & 7 are deleted.
3. Parties to bear their own costs.
( Smt. R. K. Kshirsagar )
Judge, (C.R.No.13)
Dt.: 08072022 City Civil Court, Gr. MUMBAI
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Dictated on : 08072022
Transcribed on : 11072022
checked on : 15072022
Signed on : 15072022
( Smt. R. K. Kshirsagar )
Judge, (C.R.No.13)
City Civil Court, Gr. MUMBAI
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“CERTIFIED TOBE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
15.07.2022 at 05.20 p.m.
UPLOAD DATE AND TIME (VARSHA U. PAWAR)
NAME OF STENOGRAPHER
Name of the Judge H.H.J.Smt.R.K.Kshirsagar
(COURT ROOM NO.13)
Date of pronouncement of
judgment/order
08.07.2022
Judgment/order signed by P.O. on 15.07.2022
Judgment/order uploaded on 15.07.2022
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