Final Order 1

Order Details: Notice of Motion
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IN THE BOMBAY CITY CIVIL COURT FOR GREATER MUMBAI
NOTICE OF MOTION NO. 1047 OF 2019
IN
S.C.SUIT NO. 1300 OF 2016
( CNR No.MHCC01-002735-2019 )
Suresh Tulsidas Waghela ...Plaintiff
V/s.
1. Shri Dilipbhai Tulsidas Waghela & Ors. ...Defendants.
Appearances :-
Ld. advocate Bhimrao Pawar for plaintiff.
Ld. advocate Ramani for defendant nos. 6 and 7.
CORAM : HIS HONOUR JUDGE SHRI R. V. KOKARE.
(C.R.No.63)
DATED : 29/10/2021.
ORDER
This notice of motion is taken out on behalf of the defendant nos.
6 and 7 for rejection of the plaint against them in view of Order 7, Rule
11-A of C.P.C. This Notice of motion resisted on behalf of the plaintiff
by filing his say.
2. Read the present notice of motion, affidavit of defendant no.6
Naresh Surajmal Burad in support of notice of motion. Perused reply
filed on behalf of the plaintiff. Heard both the learned counsels on
behalf of both the sides at length.
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3. The learned counsel on behalf of defendant nos.6 and 7 has
submitted that the plaintiff has submitted in his plaint that the
plaintiff’s brother defendant nos.1 to 4 and their mother were staying in
tenanted premises at Parvati Sadan and were carrying joint family
business. The plaintiff parents having ancestral properties i.e. Room No.
6 and 4 at Parvati Sadan , Shop No. 6 situated at Khethwadi Back road
and Room Nos. 1 and 2 situated at Bhagwandas Building, Khethwadi
Back Road, Mumbai. The plaintiff by an order dated 13/06/2018 passed
in chamber summons No. 568 of 2017 have deleted properties, the
properties i.e. room no. 4 and 6 and Godown-cum-shop no.6 excluding
room no. 1 and 2 situated at Bhagwandas Building , Khethwadi, Back
Road, Mumbai and continued the suit Flat No.307, Shreepati Castle,
which is redeveloped and permanent alternate accommodation allotted
to infavour of defendant nos 1 to 4 in place of original tenant Smt.
Shantaben due to her demise in lieu of old tenanted premises no.1 and
2, Bhagwandas Building, Khetwadi Back Road, Mumbai 400 004.
4. The learned counsel for the defendant nos. 4 and 6 has argued
that in the year 2006, the plaintiff separated from Waghela Family i.e.
defendant nos. 1 to 4 and deceased mother Smt. Shantaben Waghela.
Plaintiff has admitted executed and signed Deed of Separation dated
18/04/2006. The plaintiff has submitted in his plaint that after gaining
knowledge of sale of suit premises i.e. Flat No. 307 in favour of
defendant nos.6 and 7, plaintiff went to defendant no.1 and asked for
his share and defendant no.1 assured him that plaintiff will be given his
share by next week as proceeds were yet to be received. Thereafter, he
again went to claim his share, when defendant no.1 in presence of
defendant nos. 2 to 4 told plaintiff that he does not have any share,
right, title and interest in respect of ancestral properties and on
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24/05/2016, defendant no.1 abused and plaintiff refused to pay share
from sale proceeds of the Flat No. 307, Shreepati Castle, sold to
defendant nos. 6 and 7.
5. The learned counsel on behalf of defendant nos.6 and 7 has
further submitted that on refusal by defendant no.1 to give share of the
plaintiff from sale proceed of Shop No. 307, the plaintiff got disturbed
and he lodged police complaint against the defendant nos.1 to 4 and
filed the present suit. The learned counsel on behalf of defendant nos. 6
and 7 has further submitted that the defendant nos.6 and 7 are
bonafide purchaser of the suit Flat No. 307, situated at Shreepati
Castle, Mumbai. There is no cause of action against the present
defendant nos.6 and 7 for filing the present suit. The dispute in
between the plaintiff and defendant nos.1 to 4 for distributing shares
from sale proceed and not dispute with defendant nos. 6 and 7.
6. The learned counsel on behalf of defendant nos.6 and 7 has
further submitted that on scrutiny of the plaint, it appears that the
plaint does not disclosed cause of action against the present defendant
nos. 6 and 7. Therefore, the plaint against the present defendant nos. 6
and 7 may kindly be dismissed in view of Order 7, Rule 11-A of C.P.C.
7. The learned counsel on behalf of the defendant nos. 6 and 7 has
argued that the plaint can be rejected against some of the defendants
also when the the plaint does not disclosed any cause of action. The
learned counsel on behalf of the defendant nos. 6 and 7 has placed his
reliance on the judgment of Bombay High Court in the case of Sheela
Ram Vidhani & Anr. V/s. S. K. Trading Company & Ors., decided on
19/06/2021 and another judgment of the Supreme Court of India in the
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case of Dahihen Vs. Arvindbhai Kalyanji Bhanusali ( Gajra) (D) Thr LRS
& Ors. , decided on 09/07/2020.
8. The learned counsel on behalf of the plaintiff has submitted that
the present notice of motion taken out by the defendant nos. 6 and 7
under Order 7, Rule 11-A of C.P.C. 1908 with false and frivolous
allegations without any reasonable cause amount to abusing the process
of law. The present notice of motion of defendant nos. 6 and 7 is
misconceived., bad in law with sole intention to delay prolonged said
suit proceeding as only motive and may not get justice to plaintiff.
9. The learned counsel on behalf of the plaintiff has further
submitted that considering the cause of action of said suit, that dispute
is purely civil nature between real brothers in respect of ancestral
properties and that plaintiff 1/5th shares, right, title and interest
involved in the suit properties, despite fact defendant nos.1 to 4 are real
brothers of plaintiff taken law in their own hands and in colluded
defendant nos. 6 and 7 as well as other defendants playing mischief and
fraud upon them and sale suit property to defendant nos. 6 and 7 on
16th day of October, 2015 by executing illegally Sale Agreement
between defendant nos.1 to 4 and defendant nos.6 and 7, in respect of
ancestral suit property of plaintiff and defendant nos. 1 to 4 viz. Flat
No.307 situated at Shreepati Castle, Bldg No.1, D-wing, 3rd floor, 11th
lande Khetwadi, Mumbai.
10. The learned counsel on behalf of the plaintiff has further argued
that the plaintiff has 1/5th share in the suit property i.e. Flat No. 307,
situated at Khetwadi, Mumbai. The plaintiff’s brother i.e. defendant
nos.1 to 4 sold the suit property to the defendant nos. 6 and 7 by
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executing registered agreement sale dated 16/10/2015 in order to
deprive 1/5th share of the plaintiff in the suit property. The learned
counsel for the plaintiff has further submitted that the present suit filed
for partition and declaration about the agreement for sale in respect of
the suit property in between the defendant nos.1 to 4 with the
defendant nos. 6 and 7 dated 16/10/2015 for declaring null and void
the share of the plaintiff. On these grounds, the learned counsel on
behalf of the plaintiff has requested that present notice of motion taken
out by the defendant nos. 6 and 7 under Order 7, Rule 11-A of C.P.C.
may be kindly rejected.
11. The learned counsel on behalf of the plaintiff has further argued
that the plaint cannot be rejected against one of the defendants. The
learned counsel for plaintiff has placed his reliance of the judgment of
the Hon’ble Supreme Court in the case of Madhav Prasad Aggarwal &
Anr. V/s. Axis Bank Ltd. & Anr. , 2019(4) ALL MR 934(S.C.)
12. After hearing the arguments advanced by learned counsels on
behalf of both the sides at length, on perusal of the rival pleadings of
both the parties and documents, it appears to me that the plaintiff has
filed the present suit for declaration that the sale deed dated
16/10/2015 entered into between the defendant nos.1 to 4 with
defendant nos. 6 and 7 and defendant no.9 as confirming party is
illegal, unlawful, and not binding on the plaintiff and for further
declaration that the plaintiff is entitled to inherit 1/5th undivided
share, right , title and interest in respect of suit premises. On scrutiny of
the plaint, it reveals to me that admittedly, the defendant nos. 1 to 4
are the real brothers of the plaintiff. Admittedly, plaintiff’s parent
owned suit premises i.e. Room Nos. 1 and 2 situated at Bhagwandas
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Building, Khethwadi, Back Road, Mumbai and therefore, the said rooms
went for redevelopment and in the redevelopment scheme, Flat No. 307
on 3rd floor, wing D, Shreepati Castle, Building No.1 situated at
Khetwadi, 11th Lane, Mumbai, given to the defendant nos. 1 to 4.
Admittedly, defendant nos. 1 to 4 had been sold the said Flat No. 307 to
the defendant nos. 6 and 7, in view of register agreement to sale dated
16/10/2015. Therefore, the plaintiff has filed the present suit against
the present defendant nos. 6 and 7. The present suit came to be filed in
the year 2016, which is in limitation.
13. After careful perusal of the entire contentions of the plaintiff in
the plaint, it appears to me that the plaintiff has disclosed cause of
action for filing the present suit against the defendants including the
present applicant i.e. defendant nos.6 and 7.
14. On perusal of the citation supra produced on behalf of the
learned counsel on behalf of the plaintiff, it appears to me that the
plaint can be rejected under Order 7, Rule 11-A of C.P.C. against some
of the defendants also. But in the present case, the plaint disclosed
cause of action for filing the present suit against the present applicant
i.e. defendant nos. 6 and 7. Therefore, I am of the view that the ratio
held in above citation is not helpful to the present applicant i.e.
defendant nos. 6 and 7.
15. From above my discussion, I come to the conclusion that plaint
disclosed cause of action for filing the suit against the defendants.
Therefore, the present notice of motion taken out by the defendant nos.
6 and 7 deserves to be rejected. Hence, I proceed to pass following
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order.
ORDER
Notice of Motion No. 1047 of 2019 is hereby rejected.
Sd/-
( R. V. Kokare )
Judge
City Civil & Sessions Court,
Dated :29/10/2021. Gr. Mumbai
Dictated on: 29/10/2021
Transcribed on: 30/10/2021
HHJ signed on: 30/10/2021
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME
30/10/2021 at 5.00 p. m.
NAME OF STENOGRAPHER
( Mrs. V. V. Malgaonkar )
Name of the Judge HHJ Shri R. V. Kokare
(COURT ROOM NO.63)
Date of pronouncement of
judgment/order
29/10/2021
Judgment/order signed by P.O. on 30/10/2021
Judgment/order uploaded on 30/10/2021
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