Final Order 1

Order Details: Other
Pdf Text: ORDER ..1.. MA. NO.31 OF 2020
MHCC010022022020
IN THE CITY CIVIL COURT FOR GREATER MUMBAI
MISC. APPLICATION NO.31 OF 2020
IN
SUIT NO. 591 OF 2019
Niyam Bhasin. ...Applicant/Defendant no.1
In the matter of
Vijayraj Chettiar. … Plaintiff.
Versus
1. Niyan Bhasin.
2. Colaba Land CHS Ltd., … Defendants.
Appearance
Defendant no.1 in person.
Adv. Shah for the plaintiff.
Adv. Yash Oza for defendant no.2.
CORAM : HIS HONOUR JUDGE
Sunil T. Soor.
(COURT No.: 2)
DATED : 27th April 2022.
ORAL ORDER
Heard defendant no.1 in person, advocate for the plaintiff and
defendant no.2 on the present miscellaneous application moved on
behalf of defendant no.1 for taking action under section 340 r/w 195 of
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ORDER ..2.. MA. NO.31 OF 2020
the Criminal Procedure Code (Cr.P.C.) against the plaintiff for perjury
under section 193 of the Indian Penal Code (I.P.C.).
2. Perused the application alongwith written notes and citation
relied on by defendant no.1 in person, reply of the plaintiff and
proceedings of the case.
3. Advocate for the plaintiff strongly opposed the miscellaneous
application contending that it is not maintainable as it does not comply
with provisions of section 193 of the I.P.C. r/w section 340 and 195 of
the Cr.P.C. It is abuse of Court process. Hence prayed for rejection of the
application.
4. Contention of defendant no.1 is that he is in exclusive use and
possession of the suit premises. Plaintiff is not in possession of the
garage i.e., the suit premises. Defendant no.1 is parking car in the said
garage. Numerous books author by his father are in the said garage. He
denied access to keys to the plaintiff which was requested few months
ago. Plaintiff was actually erstwhile domestic servant of Bhasin family
and later became mechanic and tyre puncture wala in petrol pump
which is located right adjacent to the garage and home of Bhasin family.
Plaintiff had attended needs of father of defendant no.1 including
bathing, doing housework, cleaning and washing etc., until his father's
demise. Few months prior to his father’s demise, plaintiff was caught
red handed trying to extract monies to the tune of Rs.3 Lakhs from his
father but due to timely intervention of defendant, cheque payment was
stopped in nick of time. So also, various averments in the plaint are
absolutely false even to the knowledge of the plaintiff. Hence plaintiff
committed perjury. Hence he prayed for allowing the application.
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ORDER ..3.. MA. NO.31 OF 2020
5. Defendant no.1 relied on the judgment of Hon'ble Apex Court in
Behram Tejani and Others v/s. Azeem Jagani, 2017 SCC OnLine SC 26
but the same cannot be relied on at this stage as defendant no.1 has not
filed his written statement on the record thereby denying averments in
the plaint.
6. It is to be noted that plaintiff filed the present suit for permanent
injunction to restrain defendants from dispossessing him from the suit
premises i.e., garage situated in defendant no.2 Society without
following due process of law. Plaintiff has taken out notice of motion
no.1265 of 2019 for appointment of Court Commissioner and grant of
temporary injunction. Defendant no.1 remained absent inspite of
service of notice of motion. Hence notice of motion was proceeded ex-
parte against the defendant. However after hearing advocate for the
plaintiff and defendant no.2, said notice of motion is dismissed on
16.09.2019.
7. Writ of summons was served on defendant no.1 through bailiff.
He appeared before the Court on 04.03.2020 through his advocate. It is
to be noted that instead of filing written statement, he filed present
miscellaneous application contending that the plaintiff made several
false averments in the plaint and hence plaintiff committed perjury.
Without filing written statement, denying averments in the plaint and
without facing the trial, contentions in the miscellaneous application
cannot be taken into consideration as true and correct. Defendant no.1
is avoiding process of law and taken out this frivolous application just to
cause delay in the matter. Hence under the circumstances, application is
not legally sustainable under the provisions of section 340 r/w 195 of
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ORDER ..4.. MA. NO.31 OF 2020
the Cr.P.C. or any other provisions of the law in any point of view and
liable to be rejected with costs. In the result, following order.
ORDER
1. Misc. Application No.31 of 2020 is rejected.
2. Defendant no.1 is directed to deposit cost of Rs.10,000/- with
District Services Legal Authority before next date.
(Sunil T. Soor)
Judge
City Civil Court, Gr.Mumbai
Date : 27.04.2022
Typed on : 27.04.2022
HHJ signed on : 27.04.2022
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ORDER ..5.. MA. NO.31 OF 2020
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
DATED 27.04.2022, 2.30 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
27.04.2022
JUDGMENT/ORDER signed by P.O.
on
27.04.2022
JUDGMENT/ORDER uploaded on 27.04.2022
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