Order 1

Order Details: Notice of Motion
Pdf Text: CNR No.
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO.496 OF 2018
IN
SUIT NO.637 OF 2009
ZINNIA MEHERNOSH KHAJOTIA & ANR. ...Plaintiffs.
V/s.
JOHN PAUL DE SOUZA & ORS. ...Defendants.
Appearances:
Ld.Adv. Mr.Giriraj a/w Adv.Rohan for plaintiff.
CORAM : HIS HONOUR JUDGE
SHRI ABHIJEET A.
NANDGAONKAR
(C.R.No.20)
DATED : 06th October,2018
ORDER
By way of this notice of motion plaintiff prayed for deleting the
issue No.9 framed on 05.01.2018.
2. In supporting affidavit to the notice of motion of plaintiff No.2
Mr.Souren Chander Alimchandan, it is submitted that, present suit
pertains to the disputes in respect of Maharashtra Apartment Owners
Act and in that suit issue No.9 was framed as under, “Whether the
defendants prove that the plaintiffs are in arrears of amount to be paid
to the Condominium as contended in the written statement.”. But in
the circumstances and facts as the suit is not pertaining to recovery of
alleged dues, question of framing of such issue casting burden upon
defendant need not to be framed and defendant Nos.1 to 3 in their
written statement have alleged that, said issue and subject matter of the
MHCC01-001937-2018
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suit is quite different and plaintiffs are seeking reliefs only against
defendant Nos.1 to 3, that too as individual and not against
condominium. In the case defendants do claim arrears of any amount
allegedly due to the Condominium, then defendants ought to first be
lawfully elected as officer bearers of the Condominium and then
procure a lawful resolution and file a separate suit against plaintiffs to
claim such alleged amount. The same cannot be sought in the present
suit. As such issue framed at sr.No.9 needs to be deleted. Plaintiff
further submitted that, defendants were never office bearers of
Connaught Mansions Apartment Owners Association as recorded by the
order of this Court dt.02.02.2010 in para No.15 which reads as “ There
is no dispute that the election of the CMAOA has not been held.” and
therefore, the question of claiming any arrears on behalf of CMAOA
does not arise. Defendant Nos.1 to 3 have not deliberately held the
elections till date and said issue will lead to confusion and will lead to
change in the subject matter of the suit and therefore, issue No.9 needs
to be deleted. If it is not deleted it will lead to precarious situation
where despite of no claim an issue is framed and a findings on the said
issue is recorded, which is far removed from the subject matter of the
suit and in any event has no legal legs to stand on. As such, said issue
needs to be deleted. If it is not deleted it will cause irreparable loss,
harm and prejudice will be caused to plaintiff. Therefore, they prayed
that, notice of motion needs to be allowed.
3. After service of this notice of motion upon defendants, they did
not file reply to it.
4. Heard learned Advocate for plaintiff. Who relied upon the
authority of Hon.Apex Court in the case of MAKHAN LAL BANGAL Vs.
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NM 496/2018 .. 3 .. Suit No.637/2009
MANAS BHUNIA AND ORS. {(in Appeal (civil) 4105 of 1999}. In this
case Hon.Apex Court elaborately discussed about the framing of issues
as follows,
“An election petition is like a civil trial. The stage of
framing the issues is an important one inasmuch as on
that day the scope of the trial is determined by laying
the path on which the trial shall proceed excluding
diversions and departures therefrom. The date fixed for
settlement of issues is, therefore, a date fixed for
hearing. The real dispute between the parties is
determined, the area of conflict is narrowed and the
concave mirror held by the court reflecting the
pleadings of the parties pinpoints into issues the
disputes on which the two sides differ. The correct
decision of civil lis largely depends on correct framing of
issues, correctly determining the real points in
controversy which need to be decided. The scheme of
Order XIV of the Code of Civil Procedure dealing with
settlement of issues shows that an issue arises when a
material proposition of fact or law is affirmed by one
party and denied by the other. Each material
proposition affirmed by one party and denied by other
should form the subject of a distinct issue. An obligation
is cast on the court to read the plaint/petition and the
written statement/counter, if any, and then determine
with the assistance of the learned counsel for the
parties, the material propositions of fact or of law on
which the parties are at variance. The issues shall be
framed and recorded on which the decision of the case
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shall depend. The parties and their counsel are bound to
assist the court in the process of framing of issues. Duty
of the counsel does not belittle the primary obligation
cast on the court. It is for the Presiding Judge to exert
himself so as to frame sufficiently expressive issues. An
omission to frame proper issues may be a ground for
remanding the case for retrial subject to prejudice
having been shown to have resulted by the omission.
The petition may be disposed of at the first hearing if it
appears that the parties are not at issue on any material
question of law or of fact and the court may at once
pronounce the judgment. If the parties are at issue on
some questions of law or of fact, the suit or petition
shall be fixed for trial calling upon the parties to adduce
evidence on issues of fact. The evidence shall be
confined to issues and the pleadings. No evidence on
controversies, not covered by issues and the pleadings,
shall normally be admitted, for each party leads
evidence in support of issues the burden of proving
which lies on him. The object of an issue is to tie down
the evidence and arguments and decision to a particular
question so that there may be no doubt on what the
dispute is. The judgment, then proceeding issuewise
would be able to tell precisely how the dispute was
decided.
In the case at hand, each one of the corrupt
practices alleged by the petitioner and denied by the
defendant, should have formed the subject matter of a
distinct issue sufficiently expressive of the material
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proposition of fact and of law arising from the
pleadings. Failure to do so has resulted in an utter
confusion prevailing throughout the trial and also in the
judgment of the High Court as was demonstrated by the
learned counsel for the appellant during the hearing of
the appeal attacking the findings arrived at by High
Court. On some of the points in dispute the High Court
has observed that no proof of the said fact (alleged in
the petition) was necessary so far as the petitioner is
concerned because there was no specific denial of the
allegations made or as there was no answer by the
defendant to the allegations of the petitioner on points
of substance. The contradiction with which the trial and
the judgment suffer is writ large. If a material
proposition of fact or law alleged in the petition was not
denied or was not specifically denied in the written
statement within the meaning of Rule 5 of Order 8 of
C.P.C. and such tenor of the written statement had
persuaded the learned designated Election Judge in
forming an opinion (belatedly while writing the
judgment) that there was an admission by necessary
implication for want of denial or specific denial then
there was no need of framing an issue and there was no
need for recording of evidence on those issues. Valuable
time of the court would have been saved from being
wasted in recording evidence on such averments in
pleadings as were not in issue for want of traverse, if it
was so! However, in the facts of the present case, we are
of the opinion that the defective framing of the issues
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though material, has not vitiated the trial inasmuch as
we are satisfied that the parties have gone to the trial
with full knowledge of the allegations and counter
allegations made in the pleadings. None of the parties
has complained of prejudice. None had made a prayer
to the High Court, before going for trial, for amending
or striking down any of the issues. We need say no more
about the issue.”
5. Therefore, on relying above authority as dispute in this suit is
quite different than issue No.9 framed by order dt.05.01.2018 and it
will not bear any consequences. It is in respect of arrears of amount to
be paid to Condominium by plaintiff has framed in view of the
contentions of written statement and it has no bearing to the subject
matter in dispute before this Court and therefore, I have no hesitation
to delete the same by allowing the notice of motion. Hence, parties are
directed to bear their costs and therefore, I proceed to pass the
following order :
O R D E R
1. Notice of Motion No.496 o f2018 in Suit No.637 of 2009 is
made absolute.
2. Issue No.9 framed on 05.01.2018 be deleted.
3. Parties to bear their costs.
( ABHIJEET A. NANDGAONKAR )
Judge, (C.R.No.20)
Dt.:06/10/2018 City Civil Court, Gr. MUMBAI
Dictated on : 06.10.2018
Transcribed on : 08.10.2018
Signed on : 08.10.2018
kps/
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“CERTIFIED TOBE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
08.10.2018 at 5.18 p.m.
UPLOAD DATE AND TIME
(KISHOR PRAKASH SHERWADE)
NAME OF STENOGRAPHER
Name of the Judge HHJ SHRI A.A.
NANDGAONKAR
(COURT ROOM NO.20)
Date of pronouncement of judgment/order 06.10.2018
Judgment/order signed by P.O. on 08.10.2018
Judgment/order uploaded on 08.10.2018
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