Order 1

Order Details: Order below exhibit
Pdf Text: Order Below Exh.4 ..1
IN THE CITY CIVIL COURT FOR GREATER MUMBAI
ORDER BELOW EXH.4
IN
S.C. SUIT NO.685 OF 2019
Rajesh P. Wakkar. ...Plaintiff.
V/s.
Avani Manoj Pusalkar & Ors. ...Defendants.
Advocates
Redekar for the plainiff.
Harish Pawar for defendants.
CORAM : HIS HONOUR JUDGE
Sunil T. Soor
(Court No.: 2)
DATED : 15th March, 2022.
O R D E R
Heard advocate for both parties on application (Exh.4) moved on
behalf of defendants for leave to file additional affidavit and documents
in support of their reply to notice of motion no.1266/2019.
2. Contention of advocate for defendants is that defendants already
filed their written statement on 13.06.2019 and adopted said written
statements as their reply to notice of motion no.1266/2019 taken out
by plaintiff for interim reliefs. However after filing written statement,
defendants learnt about certain facts and obtained related documents
under the Right to Information Act from the concerned authrities.
Defendants have already made refereance of said documens in their
written statement. Hence he prayed for allowing the application
(Exh.4).
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Order Below Exh.4 ..2
3. Plaintiff opposed the application vide reply (Exh.4A). Contention
of advocate for the plaintiff is that additional affidavit and documents
sought to be filed on record by defendants are not material and relevant
for final adjudication of the subject matter of the suit. Application is not
signed by the party. It is not on affidavit. Application is not in format
and accordance with the provisions of the City Civil Rules and Act, and
as directed by the Hon'ble High Court in Writ Petition No.9357/2013.
Application is misconceived and filed at belated stage. Hence he prayed
for rejecion of the application. In support of his contention, he filed on
record copy of order dated 19.10.2013 in Writ Petition No.9357/2013.
4. It is not in dispute that defendants filed their written statement
on 13.06.2019 and adopted said written statements as their reply to
notice of motion no.1266/2019 taken out by plaintiff for interim reliefs.
5. Only contention of advocate for the plaintiff is that Application is
not in format and accordance with the provisions of the City Civil
Rules and Act, and as directed by the Hon'ble High Court in Writ
Petition No.9357/2013.
6. From perusal of copy of order dated 19.10.2013 in Writ Petition
No.9357/2013 filed on record by advocate for plaintiff, it appears that
in the said case, petitioner was plaintiff and respondents were
defendants. Evidence of petitioner was closed and matter was
adjourned for evidence of respondent no.3. Respondent no.3 was absent
on the adjourned date, hence evidence of respondent no.3 was closed
and matter was adjourned for evidence of respondent no.4. Thereafter
respodent no.3 tendered affidavit of examination in chief and
documents which are taken on record. On the next date, respondent
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Order Below Exh.4 ..3
no.3 filed application in the form of affidavit for setting aside the order
of closing his evidence and that application was not signed by
respondent no.3 and it was signed by counsel for respondent no.3.
Petitioner taken objection to the maintainability of said application and
trail Court allowed said application on the ground that it is opposed by
the plaintiff/petitioner on technical ground of not filing notice of
motion for this purpose, considering a progress of the suit without
going into technicality and as there is no delay. Under the
circumstances, the Hon'ble High Court held that different types of
application prescribed under the Bombay City Civil and Sessions Court
Rules, 1948 for different types of reliefs such as Notice of Motion,
Chamber Summons, Judges Order and Chamber Order are required to
be supported by an affidavit of the party making the application.
7. It is true that parties to the suit in the Bombay City Civil Court,
have to take out application in the nature of notice of motions for
claiming substantial reliefs in the nature of temporary injunction,
condonation of delay, appointment of the Court Receiver etc., and for
procedural matters like amendment, bringing legal heirs on record etc.,
parties have to take out application in the nature of chamber summons.
8. Present application (Exh.4) neither false under the category of
notice of motion nor chamber summons as defendants are filing
additional affidavit and documents on the record in support of their
reply to notice of motion taken out by the plaintiff. Additional affidavit
filed by defendants is signed by defendant no.3 as well as advocate for
defendants.
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Order Below Exh.4 ..4
9. Parties are close relatives of each other. Suit is for permanent
injunction to restrain defendants from interfering with possession of the
plaintiff in the suit premises i.e., Room No.103 in Pancharatna Parel
Shivsmruti SRA Co-operative Housing Society Limited, Worli, Mumbai
without following due process of law and this Court already granted
status quo with regard to the portion of the suit premises in which the
plaintiff is running printing press. Present application is not for setting
aside any order. It is only for taking additional affidavit and documents
of defendants on the record in support of their written statement and
for opposing notice of motion taken out by plaintiff for interim reliefs.
Said notice of motion of the plaintiff is still pending. Hence it need not
be in the nature of notice of motion or chamber summons. Hence with
due regards, this Court is of the opinion that application (Exh.4) is
maintainable and order passed by the Hon'ble High Court in Writ
Petition No.9357/2013 is not squarely applicable to the facts of the
present application. Under the admitted facts and circumstances,
objection raised by advocate for the plaintiff to oppose the application
(Exh.4) is not legally sustainable. Hence application (Exh.4) is liable to
be allowed. In the result, this Court proceeds to pass the following
order.
O R D E R
1. Application (Exh.4) is allowed.
2. Additional affidavit-in-reply of defendants along with the
documents filed with it is taken on record.
3. No order as to costs.
(Sunil T. Soor)
City Civil Judge, Gr. Mumbai
Date : 15.03.2022
Typed on : 15.03.2022
HHJ signed on : 15.03.2022
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Order Below Exh.4 ..5
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
DATE 15.03.2022, 2.30 p.m.
UPLOAD DATE AND TIME Mrs. V. N. Rajgole.
NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.2)
H.H.J. Shri. S. T. Soor
C.R.No.02
Date of Pronouncement of
JUDGMENT/ORDER
15.03.2022
JUDGMENT/ORDER signed by P.O.
on
15.03.2022
JUDGMENT/ORDER uploaded on 15.03.2022
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