Final Order 1

Order Details: Other
Pdf Text: ORDER ..1.. MA No.13 of 2019
MHCC010021642019
IN THE CITY CIVIL COURT FOR GREATER MUMBAI
MISCELLANEOUS APPLICATION NO.13 OF 2019
IN
S.C.SUIT NO.1272 OF 2010
Darshan Vilayati Ram Khanna. …Applicant /
(Orig. Plaintiff )
Versus
Varinder @ Rajan Darshan Khanna. … Respondent /
(Orig. Defendant)
Advocates
Ashish Mishra for the applicant.
Athavale for the respondent.
CORAM : HIS HONOUR JUDGE
Sunil T. Soor
COURT NO.2
DATED : 21st October, 2021.
ORAL ORDER
Present miscellaneous application has been moved on behalf of
the original plaintiff/applicant for reconstruction of the plaint in S.C.
Suit No.1272/2010. Respondent/original defendant filed reply and
strongly opposed the application. Heard advocate for both parties.
Perused the application, reply and documents.
2. It is a matter of record that vide order dated 17.02.2011, this
Court returned the plaint in S.C. Suit No.1272/2010 to the plaintiff for
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ORDER ..2.. MA No.13 of 2019
presentation before the Competent Court for want of jurisdiction to
entertain and try the suit. Against said order, plaintiff preferred appeal
bearing Appeal From Order No.910/2012. Vide order dated 05.01.2017,
the Hon’ble High Court dismissed said appeal with direction that in
case, the appellant presents the plaint before the Small Causes Court in
terms of the impugned order within a period of six weeks, the
concerned Small Causes Court is requested to dispose of such suit as
expeditiously as possible taking into consideration the circumstances
that the appellant is a senior citizen.
3. Contention of advocate for the applicant/plaintiff is that plaintiff
appointed an advocate to take the original plaint and file the same
before the Small Causes Court. Despite efforts by the plaintiff’s
advocate, the plaint was not traceable in the City Civil Court. Hence
advocate for plaintiff made an application for extension of time to take
the plaint from the City Civil Court and the same was extended by two
weeks as per order dated 16.02.2017. The said order dated 16.02.2017
was recalled by the Hon’ble High Court vide order dated 07.03.2017. At
that time, plaintiff came to know that original plaint was returned to
his earlier advocate i.e., H.K. Vazrani on 15.03.2011.
4. Vide order dated 21.03.2017, the Hon’ble High Court gave
liberty to the plaintiff to take out appropriate proceedings if the plaintiff
is desirous of seeking extension of time in order to present the plaint
before the appropriate Court. Hence vide letter dated 03.04.2017,
plaintiff called upon his earlier advocate H.K. Vazrani to return the
original copy of the plaint. Vide letter dated 08.04.2017, advocate H.K.
Vazrani replied the plaintiff’s letter stating that original plaint was
returned to the plaintiff’s son Naresh.
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ORDER ..3.. MA No.13 of 2019
5. Original plaint is neither with the plaintiff nor with his son nor
with his earlier advocate H.K. Vazrani. Hence plaintiff took out Civil
Application No. 877/2017 in Appeal From Order No. 910/2012 for
reconstruction of the plaint but the Hon’ble High Court vide order dated
29.10.2018 dismissed said civil application and directed the plaintiff to
approach before this court. Hence plaintiff filed the present application
and prayed for allowing the same.
6. Contention of advocate for the respondent/original defendant is
that advocate for the plaintiff taken back the plaint from the City Civil
Court and the Registrar of the City Civil Court submitted his report
dated 28.02.2017 in Appeal From Order No.910/2012 before the
Hon’ble High Court. Plaintiff neither refuted the clarification given by
advocate Vazrani regarding receipt of original plaint from the City Civil
Court nor lodged complaint against him. Plaintiff is father of the
defendant. Plaintiff had filed the suit only to grab share of the
defendant and to defeat his right. Plaintiff is taking undue advantage to
build his false case. Application is misconceived, devoid of merits and
filed only with intent to mislead the Court. Hence prayed for rejection
of the application.
7. Advocate for the plaintiff filed on record, copy of order dated
17.02.2011 in S.C. Suit No.1272/2010, order dated 05.01.2017 in
Appeal From Order No. 910/2012, order dated 21.03.2017 in Appeal
From Order No.910/2012, copy of letter dated 03.04.2017 of the
plaintiff to advocate Vazrani, copy of letter dated 08.04.2017 of
advocate H.K. Vazrani to the plaintiff, copy of Civil Application
No.877/2017 in Appeal From Order No.910/2012 and order dated
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29.10.2018 in Civil Application No.877/2017 in Appeal From Order
No.910/2012.
8. Advocate for the respondent/original defendant filed on record,
copy of order dated 16.02.2017 in Appeal From Order No.910/2012,
letter dated 03.04.2017 of the plaintiff to advocate H.K. Vazrani and
letter dated 08.04.2017 of advocate H.K. Vazrani to the plaintiff.
9. It is not in dispute that vide order dated 17.02.2010, plaint in
S.C. Suit No.1272/2010 was returned to the plaintiff. Plaintiff had filed
Appeal From Order no. 910/2012 against said order and the Hon’ble
High Court vide order dated 05.01.2017 dismissed said appeal but
directed the plaintiff to present the plaint before the Small Causes Court
within a period of six weeks.
10. Plaintiff applied before the Hon'ble Court for extension of two
weeks time to present the plaint on the ground that plaint is not
traceable before the City Civil Court. At that time Mr. Shukla, Learned
Counsel for the appellant/plaintiff stated before the Hon’ble High Court
that they have for the last six weeks made effort and persuaded the
matter with the Registrar of the City Civil Court in order to trace the
plaint and because the plaint is not traceable, they are constrained to
seek extension of time. Hence the Hon’ble High Court vide order dated
16.02.2017 requested the Principal Judge of the City Civil Court to take
cognizance of the matter and inquired into why the plaint in S.C. Suit
No.1272/2010 is not traceable and in case the plaint is not traceable
within a period of one week, the Principal Judge is requested to furnish
the report as to the circumstances in which the plaint has allegedly
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disappeared from the court record.
11. On 21.03.2017 the Hon’ble High Court passed order in Appeal
From Order No.910/2012 and recalled the order dated 16.02.2017 by
relying on the inquiry report furnished by the Principal Judge City Civil
Court to the effect that plaint is returned to advocate H.K. Vazrani on
15.03.2011 from the Registry of the City Civil Court Mumbai. Advocate
Shukla who appeared before the Hon’ble High Court tendered
unconditional apology for making false statement before the Court. In
para no.10 of Appeal From Order No.910/2017, the Hon’ble High Court
mentioned that “Mr.Shukla has further sought to explain that Mr. Ashish
Mishra who had instructed him in the matter had made efforts to seek
return of the plaint before the Registry of the City Civil Court. In the
affidavit, it is stated that Mr. Mishra had no knowledge that plaint had
already been returned to Mr. H.K. Vazrani”. In para no.11 of Appeal
From Order No.910/2017, the Hon’ble Court mentioned that contents
of an affidavit of Mr. Shukla do not inspire much confidence. In para
no.14, the Hon’ble High Court in Appeal From Order No.910/2017
observed that “it cannot be ruled out that Mr. Shukla was acting on the
basis of instructions which were obviously incorrect. Under the
circumstances, the Hon’ble High Court also levied cost of Rs.25,000/-
on the plaintiff and plaintiff deposited the same. The Hon’ble High
Court by order dated 21.03.2017 granted liberty to the plaintiff to take
out civil application in case he is desires of seeking extension of time in
order to present the plaint before the appropriate court.
12. Letter dated 03.04.2017 of the plaintiff to advocate Vazrani
states that the plaint was taken by advocate Vazrani on 15.03.2011 as
per office record of Hon’ble Bombay City Civil Court and plaintiff
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requested advocate Vazrani to give copy of the plaint. Advocate Vazrani
given reply on 08.04.2017 to the plaintiff stating that plaint is returned
to Naresh, son of the plaintiff on instruction of the plaintiff. Copy of said
letter is filed on the record by both parties.
13. After filing of present application, as a matter of abudant
precaution, my predecessor also called report from the department as
to status of the records and proceedings in S.C. Suit No. 1272/2010.
Report dated 22.01.2020 received from Assistant and Additional
Registrar (Board Department) stating that the department has called the
record of Suit No.1272/2010 and also verified the Plaint Return
Register and it is found that on 15.03.2011, advocate for plaintiff has
received the original plaint as per order of the Court. Endorsement of
advocate H.K. Vazrani is annexed with said letter about receipt of
original plaint on 15.03.2011.
14. It is to be noted that Advocate Ashish Mishra who appeared in
the present application and argued the application is the same advocate
on whose instruction Advocate Shukla made statement before the
Hon'ble High Court that Mr. Ashish Mishra who had instructed him in
the matter had made efforts to seek return of the plaint before the
Registry of the City Civil Court and in the affidavit also, he stated that
Mr. Mishra had no knowledge that plaint had already been returned to
Mr. H.K. Vazrani.
15. Thus it is abundant clear that plaint was returned to earlier
advocate of the plaintiff and he returned the plaint to Naresh, son of the
plaintiff on instruction of the plaintiff. Plaintiff was having knowledge
of these facts. In spite of that plaintiff filed application before the
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ORDER ..7.. MA No.13 of 2019
Hon'ble High Court and before this Court for reconstruction of the
plaint. It is not the case of applicant that he has no son named Naresh.
Application is neither supported with affidavit of Advocate H.K. Vazrani
to the effect that he has not given original plaint to Naresh, son of the
plaintiff on the instruction of the plaintiff nor affidavit of Naresh, son of
the plainttiff to the effect that he has not received original plaint from
Advocate H.K. Vazrani on the instruction of the plaintiff. It is also not
the case of applicant that any suit is pending before this Court or during
the pendency of the suit, plaint is destroyed, burnt or disappeared from
the record for any reason.
16. It appears that the applicant wants to keep the defendant
engaged in litigation for years and years. Application is vexatious and
devoid of merits. Under the facts and circumstances, application is
liable to be rejected with heavy exemplary costs. In the result, this Court
proceeds to pass following order.
O R D E R
Miscellaneous Application No.13 of 2019 is dismissed with costs
of Rs.30,000/- (Thirty Thousand Rupees only) to be deposited with
District Legal Aid Services Authority within one month from the date of
this order.
(Sunil T. Soor)
Judge
City Civil Court, Gr.Mumbai
Date : 21.10.2021
Typed on : 21.10.2021
HHJ signed on : 21.10.2021
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ORDER ..8.. MA No.13 of 2019
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
DATED 21.10.2021, 5.30 p.m.
UPLOAD DATE AND TIME Mrs. V. N. Rajgole.
NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.)
H.H.J. Shri. S. T. Soor
C.R.No.02
Date of Pronouncement of
JUDGMENT/ORDER
21.10.2021
JUDGMENT/ORDER signed by P.O.
on
21.10.2021
JUDGMENT/ORDER uploaded on 21.10.2021
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