Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 Draft N/M No. /2018 in L.C.Suit No.4726/2011
IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
DRAFT NOTICE OF MOTION NO. OF 2018
(C.N.R.No. MHCC01000 2018)
IN
L.C. SUIT NO. 4726 OF 2011
(C.N.R.No. MHCC010052082011)
1a Amina Jusub Khaskeli ]
1b Anish Jusub Khaskeli ]
1c Siraj Jusub Khaskeli ]
1d Imran Jusub Khaskeli ]
1e Bunty Jusub Khaskeli ]
All are residing at Bhagwati Wadi, ]
Dayaldas Road, Vile Parle (East), ]
Mumbai 400 057. ]
2a Subhash Sarju Kanu Stall No.05 ]
Mongibai Road, Vile Parle (East), ]
Mumbai 400 057. ]
2b Sushila Sarju Kanu ]
Residing at 211 Bhansali, SRA, CHS, ]
Hanuman Road, Vile Parle ]
Mumbai 400 057. ]
3 Satyaprakash Chaukatprasad, ]
Dhobi Stall No.6, ]
4 Chimanlal M. Gandhi, Stall No.8, ]
5 Ghyanshyam Keshavji Khutiya, ]
Stall No.7, ]
6 Hasmukh Virji Shah, Stall No.9, ]
7 Lakhamshi Keshavaji Khutiya, ]
Stall No.1, ]
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2 Draft N/M No. /2018 in L.C.Suit No.4726/2011
8 Genesh Hari Burman, All at ]
Mongibai Road, Vile Parle (E), ]
Mumbai 400 057. ]..Plaintiffs.
V/s.
1 India Finance and Construction ]
Company Pvt. Ltd. Incorporated ]
under Companies Act, 1956 having ]
its registered office at Agarwal ]
Market, 27 Tejpal Road, ]
Vile Parle (East), Mumbai400 057. ]
2 Mumbai Municipal Corporation ]
through the Municipal Commissioner ]
Head Office, Mahapalika Marg, Fort, ]
Mumbai 400 001. ]
3 The Executive Engineer, Building ]
and Proposal Department, 'K' East, ]
Ward, R.K. Patkar Marg, Bandra (W),]
Mumbai 400 001. ]..Defendants.
Advocate Ms. Pamela Dalal for plaintiff.
Advocate Ms. Anita Trivedi for defendant no.1.
Advocate Mr. Malankar for BMC/defendant nos.2 and 3.
CORAM : HER HONOUR JUDGE
MS. S.P. PONKSHE.
(C.R.NO.11)
DATE : 15th FEBRUARY 2018
ORAL ORDER
This draft Notice of Motion has been taken out by the
plaintiff for directing defendant no.1 to produce documents mentioned
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3 Draft N/M No. /2018 in L.C.Suit No.4726/2011
in the schedule annexed to the notice of motion which are in possession
of defendant no.1, as well as defendant no.2.
2 Plaintiff no.6 has filed his affidavit in support of notice of
motion. It is averred that the suit is filed for declaration that the
plaintiffs have become owners by way of adverse possession of the suit
shops and of the land underneath thereto situated on CTS No.965
abutting Mongibai Road, Vile Parle (East), Mumbai 400 057.
3 It is further averred that defendant no.1 started
construction work on the said plot. Defendant no.1 is not showing the
structural proposed building plans, even though the advocate for the
plaintiff called upon defendant no.1 to produce the documents. Later on
many attempts were made to obtain the copies of IOD, proposed
building plans, CC, Plan of architecture and other documents submitted
by defendant no.1 for passing the proposed plan from BMC, but till date
none were given to him or other plaintiffs. It is not possible for the
plaintiffs to complete their evidence. It is just and necessary that
defendant no.1 be directed to produce the said documents. If this
notice of motion is not allowed grave and irreparable harm and injury
would be caused to the plaintiffs. Thus, prayed for allowing notice of
motion.
4 Advocate for defendant no.1 has filed say and contended
that notice of motion is not maintainable under the law. The plaintiffs'
evidence is going on. At this stage, the plaintiffs have taken out this
notice of motion to cause delay only. Thus defendant no.1 strongly
objected for allowing notice of motion.
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4 Draft N/M No. /2018 in L.C.Suit No.4726/2011
5 Advocate for defendant nos.2 and 3 has filed say and
contended that this notice of motion is not maintainable. The plaintiffs
will have to stand on their own legs to substantiate their case. In
paragraph no.9 of the plaint, the plaintiffs have admitted that they
have obtained the copy of IOD from defendant nos.2 and 3 under the
provisions of R.T.I Act. The plaintiffs were at liberty to obtain copies of
entire file of the documents, including plans of the building . From
averments and documents of the plaintiff suggest that the plaintiffs
were aware of the plan. According to the plaintiffs, they are claiming
only interest in the portion of land below their shops and not in the
plot. Thus, documents are not relevant. The plaintiffs can call the
concerned officers of defendant nos.2 and 3, by issuing witness
summons to produce the documents. This notice of motion is nothing,
but delaying tactics. Therefore, notice of motion is liable to be
dismissed with heavy costs.
6 Heard learned advocate for the plaintiffs and learned
advocates for defendant nos.1 to 3.
7 Perused schedule annexed to the notice of motion. I would
like to mention that the Hon'ble High Court has directed to expedite the
suit and it is time bound suit. The plaintiffs have examined three
witnesses. Now at this stage of the suit, the plaintiffs have filed this
notice of motion for giving directions to defendant no.1 for production
of certain documents.
8 It is to be noted that the suit is filed in the year 2011. It is
argued by the learned advocate for the plaintiff that the plaintiffs have
claimed documents from defendant no.1 in the year 2008. Thus, much
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5 Draft N/M No. /2018 in L.C.Suit No.4726/2011
prior to filing of the present suit, the plaintiffs had demanded the said
documents. It further reveals from the pleadings of the plaintiffs in the
suit plaint that after that the plaintiffs have filed an application under
R.T.I Act and obtained necessary said documents in the first week of
January 2011. The plaintiffs have obtained IOD. It appears that the
plaintiffs have filed on record copy of IOD along with the suit plaint.
Thus, prior to filing of the suit, the plaintiffs were well aware of the
facts that, which documents are necessary for them to claim relief
against defendants by filing present suit. Further it reveals that
accordingly, even for necessary documents they filed an application
under RTI Act and obtained documents and thereafter only filed present
suit against the defendants. Thus, since the filing of the suit till filing
this notice of motion, the plaintiffs have never demanded documents
annexed with notice of motion and not asked the relief earlier.
9 Further, even at the time of evidence of three witnesses of
the plaintiffs, they have not taken any steps for the said documents.
Earlier there was opportunity to the plaintiffs to obtain the said
documents under RTI Act i.e when they have obtained IOD from
defendant no.2. But it reveals that at that time, the plaintiffs have not
demanded the said documents and even thereafter till today the
plaintiffs have not demanded documents from defendant no.2.
10 It appears that the plaintiffs have slept, since the filing of
the suit in respect of obtaining the said documents from defendant
nos.2 and 3. Now when evidence of the plaintiffs have been recorded
partly, at this stage, the plaintiffs have filed this notice of motion.
Basically, the plaintiffs suomoto can obtain the said documents under
RTI Act from defendant no.2, but the plaintiffs have not opted for the
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same. At this belated stage, filing of this notice of motion is nothing,
but causing intentionally delay in the decision of the suit. Actually in
this suit being time bound suit, time and again directions were given to
the plaintiffs to keep ready evidence of all witnesses, so as to decide the
suit within time bound period. But it seems that instead of following
the same, the plaintiffs have taken out this notice of motion at too late
stage of the suit. This conduct of the plaintiffs discloses that for one or
other reasons, they want to cause delay in the decision of the suit.
Thus, in peculiar circumstances, the present notice of motion is not
maintainable and it is to be dismissed. With this, I proceed to pass the
following order:.
ORDER
1 Draft Notice of Motion is hereby dismissed with costs.
2 The plaintiffs are directed to register the notice of motion for
statistical purpose.
3 Draft Notice of Motion stands disposed of accordingly.
(S. P. PONKSHE)
Judge,
City Civil Court,
Gr. Bombay.
Date: 15/02/2018.
Dictated on : 15/02/2018
Transcribed on : 15/02/2018
Signed on : 20/02/2018
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7 Draft N/M No. /2018 in L.C.Suit No.4726/2011
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
21/02/2018 At 3.35 p.m. MRS. SUPRIYA S. PAWAR
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.)
HHJ MS. S. P. PONKSHE
(C.R.NO.11)
Date of pronouncement of
Judgment/Order
15/02/2018
Judgment/Order signed by P.O. on 20/02/2018
Judgment/Order uploaded on 21/02/2018
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