Final Order 1

Order Details: Notice of Motion
Pdf Text: NM 1129-19 in MA 66-17 in Counter claim 24-13
in Summary Suit No. 5383-12
1 Date : 08.08.2019
IN THE BOMBAY CITY CIVIL COURT FOR GREATER MUMBAI
NOTICE OF MOTION NO. 1129 OF 2019
IN
MISC. APPLICATION NO. 66 OF 2017
IN
COUNTER CLAIM NO. 24 OF 2013
IN
SUMMARY SUIT NO. 5383 OF 2012
(CNR NO.MHCC01002910 2019 )
Mr. Narendra Kumar Bhagwandas Gupta ..Original
Defendants/Plaintiff in
Counterclaim
Versus
Mrs. Satibha Ajit Upadhyay .. Respondent/ Org.
Defendant in counterclaim
Appearances :
Plaintiff in person present.
Defendant no.1 (Dr.Narendra Kumar B. Gupta) in person present.
Coram : His Honour Judge
Shri. A.H.Laddhad
Additional Judge
CR No. : 7
Date : 08.08.2019
1. The defendants have filed instant Notice of Motion for
recalling of order dated 21.02.2019 passed in Misc. Application
No. 66 of 2017 whereby application under Section 340 of Cr.P.C.
was disposed off by my Ld. Predecessor by keeping open the issue
of perjury and shall be decided at the time of final judgment.
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NM 1129-19 in MA 66-17 in Counter claim 24-13
in Summary Suit No. 5383-12
2 Date : 08.08.2019
2. The present applicant is the original defendant in the
Summary Suit No. 5383 of 2012 and plaintiff in Counterclaim No.
24 of 2013. It is the allegation of the present applicants that the
respondent herein filed suit based on suppression of material fact.
The plaintiffs purposefully suppressed documents of their financial
status showing capacity to pay consideration of Rs. 1,28,00,000/.
The plaintiff did not file any document. The plaintiffs are
defaulter in complying with the Terms of Memorandum of
Undertaking. The content of plaint and Examination in Chief of
the plaintiffs are not reliable far from actual truth / facts and the
plaintiff suppressed the material fact and stated falsehood on oath
made with the intention to cover up plaintiffs wrongs and made to
mislead and misguide the Court.
3. It is further alleged by the applicants / defendants that the
examination in chief filed by the plaintiff is contrary to
Memorandum of Understanding which is apparent that the
plaintiffs have made false statement. The plaintiffs on the basis of
false averments obtained order dated 17.09.2013 from the Court.,
which shows fraud played upon the Court. The court passed
aforesaid order on the basis of forged document and wrong
submission made by the plaintiff and their advocate Mr. B.A.Singh.
The applicant / defendants further alleged that the plaintiffs filed
bogus sanctioned letter dated 13.05.2011 and NOC dated
27.03.2011 of society in which the name of plaintiff's son is
incorporated which clearly shows that the plaintiffs have
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NM 1129-19 in MA 66-17 in Counter claim 24-13
in Summary Suit No. 5383-12
3 Date : 08.08.2019
committed forgery and filed false claim against the defendants in
the Court. Therefore, the applicants/defendants prayed for
initiating inquiry under Section 340 of Cr.P.C.
4. My Ld. Predecessor after granting liberty to both the side by
its detailed order which is running into 14 pages disposed off Misc.
Application by keeping open the issue of forgery and directed to be
decided at the end of the final judgment.
5. It is the contention of the applicants/defendants that my Ld.
Predecessor without going into root of the case and without
finding the truth of the case disposed off the aforesaid application.
It is alleged by the applicant that the plaintiffs and his advocate
Mr. B.A.Singh influenced Judicial System and also influenced to
the Presiding Officer and therefore, Presiding Officer did not take
cognizance of forged documents. It is further alleged that, my
Predecessor had misused her Judicial Power to help plaintiffs and
passed wrong order under influence of plaintiff which is erroneous
and contrary to the law. The Presiding Officer passed impugned
order without considering the facts and circumstances of the case
and without considering relevant provisions of the law. Therefore,
it is manifest error on the face of the record therefore, the
applicants/defendants prayed for recalling of the impugned order.
6 . The Notice of Motion is opposed by the plaintiffs by
filing their say. Heard both the sides at length. It is well settled
law that as per order XLVII Rule 1, scope of review is very limited
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in Summary Suit No. 5383-12
4 Date : 08.08.2019
only to the extent of correcting the error apparent on the face of
record. The Court can not rehear the entire matter on merit,
neither Court can substitute its own view if the different view is
possible. On perusal of the averments of Notice of Motion, it
appears to me that the applicants/defendants leveled serious
allegations against Presiding Officer. The applicants / defendants
failed to point out error apparent on the face of the record in the
impugned order. Moreover, the Misc. Application No. 66 of 2017
is not rejected by my Ld. Predecessor, rather issue of forgery was
kept open and directed it to be decided at the end of the trial.
Hence, in my view, there is no error apparent on the face of the
record. The Notice of Motion is misconceived and deserves to be
rejected. The applicants/defendants made serious allegation
against Presiding Officer and due to the filing of Misc. Application
No. 66 of 2017 and present Notice of Motion the time of three
years have been lapsed, till this time the suit could have been
disposed off. Hence, due to the aforesaid conduct of the
applicants/defendants, I am constrained to impose cost of Rs.
2,000/ upon the applicants/defendants which is to payable to
Legal Aid Department. Thus, I proceed to pass following order :
ORDER
1. Notice of Motion No.1129 of 2019 is hereby dismissed with
cost of Rs. 2,000/to be payable by the
applicants/defendants to be deposited in Legal Aid
Department.
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NM 1129-19 in MA 66-17 in Counter claim 24-13
in Summary Suit No. 5383-12
5 Date : 08.08.2019
2. Notice of Motion No. 1129 of 2019 is disposed off
accordingly.
(A.H.Laddhad)
Additional Judge
Bombay City Civil Court
Dated : 08.08.2019 Greater Mumbai
Dictated on : 08.08.2019
Typed on : 08.08.2019
Draft Submitted on : 08.08.2019
Checked on : 08.08.2019
Signed on : 08.08.2019
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NM 1129-19 in MA 66-17 in Counter claim 24-13
in Summary Suit No. 5383-12
6 Date : 08.08.2019
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
09/08/2019 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.7)
Date of Pronouncement of
JUDGMENT/ ORDER
08/08/2019
JUDGMENT/ORDER signed by P.O.
on
09/08/2019
JUDGMENT/ORDER uploaded on 09/08/2019
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