Final Order 1

Order Details: Notice of Motion
Pdf Text: NM 794/18 in EA 843/13
in S.C.Suit No. 1592/1999 1
Date : 18.07.2019
IN THE BOMBAY CITY CIVIL COURT FOR GREATER MUMBAI
NOTICE OF MOTION NO. 794 OF 2018
IN
EXECUTION APPLICATION NO. 843 OF 2013
IN
S.C.SUIT NO. 1592 OF 1999
(CNR.NO.MHCC01002832 2018)
Smt. Girija W/o. Chaturghun Tiwari & Ors. ...Plaintiffs
Vs.
Shri. Mithailal Rammoorat Prajapati & Ors. ...Defendants
Appearances :
Mr. R.R. Sharma, Ld. Advocate for Decree holder present.
Mr. G.R. Diwedi, Ld. Advocate for defendant no.1 present.
Smt. Shettal Malvankar, Ld. Advocate for defendant no.2
present.
Coram : His Honour Judge
Shri. A.H.Laddhad
Additional Judge
CR No. : 32
Dated : 18th July, 2019.
ORDER
1. The defendant no. 2 has filed instant Notice of Motion for
setting aside exparty Judgment and decree dated 26.11.2012
which was subsequently modified on 29.01.2013.
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in S.C.Suit No. 1592/1999 2
2. It is contended by the defendant no. 2 that, he is Developer
appointed by the Slum Rehabilitation Authority for development of
plot bearing Survey No. 1308, 1309 and 1328 at New Patra Chawl,
Nikam wadi, National Engineering Compound, Kakasaheb Gadgil
Marg, Dadar, Mumbai 400 028.
2. It is submitted by the defendant no. 2 that the plaintiff has
filed suit against defendant no. 1 in respect of Flour Mill known as
"Narbdeshwar Flour Mill situated at Censused Hut No. GNMA2
3/4. The defendant no. 2 was not added as party defendant. The
defendant no. 2 was added as defendant as per order dated
30.10.2007. It is submitted by the defendant no. 2 that he has
received the Chamber Summons in respect of addition of party
defendant but as the dispute was between the plaintiff and the
defendant no. 1, he could not appear in the suit. In the year 2005
i.e. prior to the defendant no. 2 being added as party in the suit,
the defendant no. 1 had served upon the defendant no. 2 the copy
of application made by the defendant no. 1 for declaring him as
eligible in respect of Flour Mill.
3. It is vehemently contended by the defendant no. 2 that, he
has not been served with the suit summons. Therefore, he was
completely unaware about proceeding in the suit. For the first
week of the February 2018, the Bailiff had visited the Shop No. 1,
Building No. 4 and inquired about Rushab Enterprises. The
adjacent occupant informed him on 15.01.2014 that the Bailiff had
visited the Shop No. 1 Building No. 4 to take possession of the said
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in S.C.Suit No. 1592/1999 3
premises. Therefore, the defendant no. 2 contacted with his
advocate and thus, filed instant Notice of Motion for setting aside
exparty Judgment and Decree.
4. It is submitted by the defendant no. 2 that the Building No. 4
has two wings i.e. A Wing and B Wing. The construction of Wing
A is completed and construction of Wing B is not yet completed.
The alleged Flour Mill is to be constructed in Wing B. As per the
BMC Rules, there can not be any construction above the Flour Mill.
The allotted shop is not earmarked for allotment of Flour Mill. As
per Slum Rehabilitation Authority Rules, the defendant no. 2 is
duty bound to comply with the formalities before granting
possession. Therefore, the Shop No. 1 in Wing A can not be given
to the plaintiff for running Flour Mill. On this count the decree
cannot be enforcible.
5. It is further contended by the defendant no. 2 that the
plaintiff initially filed suit in respect of possession of Shop No. 2,
however, the plaintiff behind his back obtained the decree in
respect of Shop No. 1. The Defendant no. 2 was never served with
the application amending description of the property. Therefore,
due to the aforesaid reasons, the defendant no. 2 claimed that the
impugned Judgment and Decree needs to quash and set aside.
6. The said Notice of Motion is opposed by the plaintiff by filing
his say. It is contended by the plaintiff that the plaint was
amended time to time. The defendant no. 2 and its partner duly
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in S.C.Suit No. 1592/1999 4
served with the amended plaint. The defendants were also served
with the notice of motion and chamber summons as and when
filed in the matter. The amended plaint was served to the
defendant no. 2 on 27.12.2012 alongwith the amended copy of
plaint. At the same time, the Advocate for the plaintiff forwarded
letter dated 16.02.2012 to the defendant no. 2 and its partners,
which shows that the suit summons were duly served with the
defendant no. 2.
7. It is contended by the plaintiff that whenever the suit was
amended, the copy of the amended plaint was duly served upon
the defendant no. 2. The Bailiff report in respect of Notice of
Motion of 2534 of 2005 and Chamber Summons No. 785 of 2005
was duly served to the defendant no. 2 on 20.02.2006. The
defendant no. 2 gave its endorsement of receipt of summons. It is
further contended by the plaintiff that the defendant no. 2 was
duly served with the Chamber Summons no. 1075 of 2011. Thus,
the defendant cannot not claim that, the suit summons were not
served to the defendant. In fact, the defendant no. 2 is having
knowledge about the pendency of the proceedings that itself
constitute the service of the summons. Ld. Advocate for the
defendant in support of the submission relied on the following
Judgments.
a) AIR 1984 Allahabad 314, in case of Ramiee Pandey V/s.
Board of Revenue.
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in S.C.Suit No. 1592/1999 5
b) AIR 1991 Patna60, in case of Satya Narayan Sah V/s. Brij
Gopal Mundra.
c) 2018(6) All MR 441 In the High Court of Judicature at
Bombay in case of Abdul Hameed Abdul Gani Shaikh V/s.
Amjad Ali Shafi Khan.
8. It is submitted by the plaintiff that the defendant no. 1 in
collusion that the defendant no. 2 in order to frustrate the decree
filed instant application for setting aside Judgment and Decree.
The defendant no. 2 was duly served with the suit summons,
hence, no case is made out by defendant no. 2 to seek relief of
setting aside the Judgment and Decree.
9. Heard both the sides. Perused Notice of Motion and reply.
The plaintiff has filed Suit No. 1592 of 1999 against defendant no.
1 for suit for declaration of possession as well as Mesne Profit. It
appears from the record that the Plaintiff filed notice of motion no.
1544 of 1999 for grant of injunction against the defendants. On
02.09.1999 the injunction was granted in favour of the plaintiff.
However, during the pendency of aforesaid notice of motion, the
defendant no.1 surrender the suit property to the defendant no.2
and the suit property was demolish without the permission of the
court and that too in violation of injunction order dated
02.09.1999. Therefore, Plaintiff filed Notice of Motion no. 2534 of
2005, wherein the defendant no.2 herein was also served on
25.07.2005 with the copy of notice of motion.
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in S.C.Suit No. 1592/1999 6
10. It is further reveled from the record that when the structure
was demolished and the plaintiff was not provided with the
alternate accommodation, he has filed chamber summon no. 785
of 2005, wherein the defendant no. 2 was also added as party
defendant. The baileef report shows that the defendant no.2 was
served on 23.07.2005.
11. It further reveled from the record that on 30.10.2011 the
defendant no.1 was expired. Moreover, the Plaintiff came to know
that the commercial shop no.1 in Building no.4 is allotted in the
name of his father. Therefore, plaintiff filed application under right
to information act and obtained the necessary information,
wherein the plaintiff was allotted commercial shop no.1. As
initially the suit property was shop no.2 but after the information
received to the plaintiff, he has filed Chamber Summons No. 1075
of 2011 for bringing legal heirs of the defendant no.1 on record as
well as for amendment in the description of the suit shop. The
copy of aforesaid chamber summons was dully served to the
defendant no.2 on 27.01.2012. Thus, looking to the aforesaid
material in my view, the defendant no.2 since begging was having
knowledge about the filling of suit and the relief claimed by the
Plaintiff. However, the defendant no.2 inspite of service of
summons did not appear and contested the suit. Hence, in my
view, defendant no. 2 cannot now raise grievance that decree is
exparte. In fact he chose not to appear and resist the suit.
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in S.C.Suit No. 1592/1999 7
12. Further the service of chamber summons 1075/2011 shows
that defendant no.2 was aware that the plaintiff on the basis of
information collected under right to information act, has preferred
the aforesaid chamber summons for correction in the description
of the property. Hence, the contention of the defendant no.2 that
he was not aware when the Plaintiff made prayer for shop no.1 of
Building no.4 cannot be acceptable. Even otherwise also the
defendant no.2 is the builder and as per the schedule attached by
the Plaintiff, it appears that the said schedule is well received by
the defendant no.2 from the SRA. The grievance raised by the
defendant no.2 to set aside the decree appears to be to create
hurdle in execution proceedings. Hence, for the reasons stated
above, I do not find any substance in the application and same
needs to be rejected. Thus, I proceed to pass following order:
ORDER
1. Notice of Motion No. 794 of 2018 is rejected with cost.
2. Notice of Motion no. 794 of 2018 is disposed of accordingly.
(A.H.Laddhad)
Additional Judge
Bombay City Civil Court
Dated : 18.07.2019 Greater Mumbai
Directly Dictated on Computer : 18.07.2019
Draft Submitted on : 22.07.2019
Checked on : 22.07.2019
Signed on : 22.07.2019
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in S.C.Suit No. 1592/1999 8
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
22/07/2019 at 3.00 p.m. (Ms. V.V.Sawant)
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court room
no.)
Shri A.H.LADDHAD
(C.R. No.32)
Date of Pronouncement of
JUDGMENT/ ORDER
18/07/2019
JUDGMENT/ORDER signed by P.O.
on
22/07/2019
JUDGMENT/ORDER uploaded on 22/07/2019
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