Final Order 1

Order Details: Notice of Motion
Pdf Text: CNR NO.MHCC01-003195-2019
IN THE CITY CIVIL COURT FOR GREATER BOMBAY
AT BOMBAY
NOTICE OF MOTION NO.1243 OF 2019
IN
S.C. SUIT NO.2112 OF 2016
Ismail Jehangir Saudagar ]....Applicant
In the Matter Between
Mohammed Latif Janmohammed Khan ]....Plaintiff.
Versus
Ismail Jehangir Saudagar ]... Defendant.
CORAM : HIS HONOUR JUDGE
SHRI A.N. MARE
(C.R. No.09)
DATE : 2nd April, 2019.
Mr. D.A. Barot, Advocate for plaintiff.
Ms. Shahista, Advocate for Defendant.
O R D E R
1. With consent heard finally.
2. The defendant has taken out this Notice of Motion to seek stay to
the operation of Order dated 16.3.2019 and to hand over the keys of
the suit premises to this Court for a period of 4 weeks so that the
defendant can approach the Hon'ble High Court to avail appropriate
legal remedy against the Order dated 16.3.2019.
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3. The Notice of Motion alleges that an earlier Notice of Motion
No.740 of 2019 is rejected by this Court and by the same Order an
Application Exh.10 filed by the plaintiff, seeking a direction to the Court
Receiver to hand over the keys of suit premises to the plaintiff and for his
appointment of an agent of the Court Receiver, came to be allowed. The
suit pertains to the aspect of the proper or wrongful premises being
handed over to the plaintiff. The defendant must get a chance to present
this issue before the Hon'ble High Court. Upon presenting an application
before this Court to be exhibited as a separate Application, this Court
had directed the defendant to move an Affidavit in support and hence,
this Notice of Motion is taken out.
4. In reply to the Notice of Motion the plaintiff has contended that
this Notice of Motion is nothing but an abuse of process of law. The
possession of suit premises is already delivered by the Court Receiver to
the plaintiff on 19.3.2019. The Order passed by this Court restoring the
possession of plaintiff on the suit premises is upheld by the Hon'ble
Courts up till the Hon'ble Supreme Court. Considering the frivolous
grounds raised by the defendant this Court has dismissed the Notice of
Motion No.740 of 2019 with costs. Defendant has already exhausted all
the available legal remedies.
5. It is apparent from the record that the Notice of Motion No.740 of
2019 is rejected by this Court on 16.3.2019. A bare perusal of said Notice
of Motion reveals that it was seeking a relief to stay the proceedings of
the suit until and unless the Special Leave Petition (SLP) is disposed off
by the Hon'ble Supreme Court. This Court has in paragraph No.11 of
Order dated 16.3.2019 observed that in view of the dismissal of SLP, the
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Notice of Motion No.740 of 2019 has become infructuous.
6. In the course of arguments of this Notice of Motion the Advocate
for defendant submitted that this Notice of Motion was taken out for a
relief of stay during the intervening period from Order dated 16.3.2019
till the defendant filing an appropriate proceedings before the Hon'ble
High Court challenging Order dated 16.3.2019. She further submitted
that the defendant has already filed a Writ Petition bearing Stamp
No.9248 of 2019 challenging Order dated 16.3.2019. She also submitted
that a Civil Application is already moved to stay the effect and operation
of Order dated 16.3.2019. According to her in these circumstances, this
Court may pass appropriate orders.
7. On these submissions this Court would have disposed off the
Notice of Motion, however, some factually incorrect statements are made
in the Affidavit in support of Notice of Motion which are required to be
dealt with. In paragraph No.5 Clause (c) of the Affidavit in support of
Notice of Motion it is stated that an Application was presented to this
Court which was to be exhibited as a separate Application however this
Court directed to move an Affidavit in service.
8. The proceeding indicates that on 18.3.2019 the advocate for
defendant merely moved a praecipe for taking the matter on board,
which was allowed. The Roznama reflects that the Advocate had stated
before this Court that no application is filed on 18.3.2019 seeking stay to
the Order dated 16.3.2019 and the advocate for defendant would be
moving an appropriate Application. Thus the statement above quoted is
factually incorrect.
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9. The Court Commissioner has submitted a report at Exh.15
revealing that the Order dated 16.3.2019 is already acted upon on
19.3.2019 itself. This circumstance, coupled with filing of Writ Petition
by the defendant before the Hon'ble High Court, makes it ample clear
that at this stage this Notice of Motion does not survive and has become
infructuous. It is also to be mentioned that the perusal of Notice of
Motion and the Affidavit filed in its support do not make out any ground
either on facts or in law to allow it. In such circumstances, the Notice of
Motion is not maintainable. Hence, the Order:
ORDER
1. Notice of Motion No.1243 of 2019 is dismissed.
2. Costs in cause.
Sd/
(A.N. MARE)
Judge,
02/04/2019 City Civil Court, Mumbai.
Dictated On : 02.04.2019
Transcribed on : 02.04.2019
HHJ Signed on : 03.04.2019
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF
THE ORIGINAL SIGNED JUDGMENT/ORDER.”
Upload Date Upload Time Name of Stenographer
03.04.2019 02.55 p.m. V.U. Pawar (H.G.)
Name of the Judge (With Court
Room No.)
HHJ SHRI A.N. MARE
(CR 09)
Date of Pronouncement of
JUDGEMENT /ORDER
02.04.2019
JUDGEMENT /ORDER signed by
P.O. on
03.04.2019
JUDGEMENT /ORDER uploaded
on
03.04.2019
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