Final Order 1

Order Details: Notice of Motion
Pdf Text: `IN THE CITY CIVIL COURT FOR GREATER BOMBAY
AT MUMBAI
NOTICE OF MOTION NO.1263 OF 2019
IN
L.C. SUIT NO.90 OF 2009
Mr. Vipinkumar Kartarchand Chopra ]... Plaintiff
Versus
1. Municipal Corporation of Greater ]
Mumbai & Ors. ]... Defendants
CORAM : HIS HONOUR JUDGE
SHRI A.N. MARE
(C.R. No.11)
DATE : 19th September, 2019.
Ms. Surbhi h/f Adv. Sipahimalani, Advocate for plaintiff.
Ms. Mhatre, Advocate for M.C.G.M./defendant.
O R D E R
1. By this notice of motion, defendant No.3 has sought dismissal of
present suit in view of admission by present plaintiff in paragraph No.1
of the plaint of suit No.1379 of 2018 filed by the plaintiff wherein he
has admitted that present suit has become influctuous. Defendant No.3
has prayed for Judgment on admission in view of provisions of Order
12, Rule 6 of CPC.
2. It is the case of defendant No.3 that, the plaintiff had filed a
transfer application in present suit. Upon service of it, the advocate for
plaintiff checked the status of transfer application by party name search
by the plaintiff. He came to know about the filing of suit No.1379 of
CNR NO.: MHCC010032682019
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2018. On going through the new suit he came to know that only
MCGM is added as defendant in said suit. In paragraph 1 of said suit
the plaintiff has stated that present suit has become influctuous due to
subsequent events. The plaintiff is abusing the process of law. At the
time of hearing of Notice of Motion in the present suit defendant No.3
informed this Court about the filing of new suit by the plaintiff and
claimed that this suit has become influctuous. After perusing
paragraph 1 of the new suit, this Court has dismissed the notice of
motion of the plaintiff in present suit. The defendant is entitled to a
Judgment on admission under Order 12 Rule 6 of CPC in his favour in
view of plaintiff's admission in new suit that present suit has become
influctuous.
3. Plaintiff has opposed the notice of motion on the ground that the
transfer application was preferred since the matter was part heard by
the then presiding Judge and suit was sought to be transferred to the
same Judge after her transfer to another Court in The City Civil Court.
Present suit was instituted against the notice under Section 354A of the
MMC Act and adinterim relief was granted. In the present case the
issues are framed by the Court in respect of legality of notice under
Section 354A of the MMC Act as well as the validity of notice under
Section 351 of the MMC Act issued by MCGM. Defendant No.3 is
misinterpreting the statement in paragraph 1 of the plaint in Suit
No.1379 of 2018. In fact in the new suit in paragraph 24 of the plaint,
the plaintiff has claimed that Officers of defendant Corporation pasted
the notice on suit premises on 16.4.2018 and informed that this suit
had become influctuous as the plaintiff has not challenged subsequent
notice issued under Section 351 of the MMC Act. Neither defendant
Corporation nor defendant No.3 has raised any objection for framing of
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3 NM 1263/19 in L.C. Suit 90/09
issue relating to notice under Section 351 in the present suit. The
order in notice of motion 1609 of 2018 is of no consequence as it is
challenged before the Hon'ble High Court. Said Appeal from Order
involves statutory rights of the plaintiff and the decision in present
Notice of Motion may amount to foreclosing his legal rights.
4. Perused. Heard.
5. Defendant No.3 has sought a decree on admission in view of the
provisions of Order 12 Rule 6 of CPC. It needs to be mentioned that
the plaint of another suit containing alleged admission is not produced
before this Court in present suit.
6. The provisions of Order 12 Rule 6 of CPC provide that the
admission should be of a 'fact'. It should be made either in the
pleadings or otherwise, whether orally in the writing. Perusal of Sub
Rule 1 and Rule 6 of Order 12 reveals that the provision is
incorporated with an intention to see that in a suit when a part of claim
is undisputed then the Court can pass a partial decree in respect of
admitted claim and can go for trial in respect of the disputed claim. It
is not supposed to cover the controversy raised in present suit.
7. The provisions of Sub Rule 1 of Rule 6 of Order 12 of the CPC
specifically deals with admissions of "fact". It is settled law that such
admission of "fact" has to be clear and unambiguous in order to rely
upon it. Though such admission of "fact", as alleged is not brought
before this Court by filing a copy of plaint in the new suit, it needs to
be noted that making of such statement is not denied by the plaintiff in
his reply to the notice of motion. However, the plaintiff has stated
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further that in plaint paragraph 24 of the plaint in new suit, he has
pleaded that the officers of defendant told the plaintiff that present suit
has become influctuous as plaintiff is served with subsequent notice
issued under Section 351 of the MMC Act. This aspect is not disputed
by the advocate for defendant No.2.
8. It is a settled law that in order to assess whether such admission
is clear and unambiguous mere statement in a paragraph cannot be
read in isolation. The plaint will have to be read as a whole to
understand whether an admission of fact is really existing in the plaint
of new suit. Considering the undisputed statement of the plaintiff in
reply, relating to the paragraph 24 of the plaint in new suit, the alleged
admission cannot be acted upon.
9. At the costs of repartition it is mentioned that, the admissions of
fact is to be considered. Whether a suit is rendered influctuous or not
in the light of subsequent events cannot be a mere question of fact. It
has to be a mixed question of fact and law. A statement regarding
mixed question of fact and law, is not covered by Sub Rule 1 of Rule 6
of Order 12 of CPC. In the result, I hold that, in view of above
discussion, decree on admission as sought by defendant No.3 cannot be
passed. Hence, the order:
ORDER
1. Notice of Motion No.1263/19 is dismissed.
2. Costs in cause.
Sd/
(A.N. MARE)
Judge,
19.09.2019 City Civil Court, Mumbai.
Dictated On : 19.09.2019
Transcribed on : 27.09.2019
HHJ Signed on : 30.09.2019
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF
THE ORIGINAL SIGNED JUDGMENT/ORDER.”
Upload Date Upload Time Name of Stenographer
30/09/19 06.00 p.m. V.U. Pawar (H.G.)
Name of the Judge (With Court
Room No.)
HHJ SHRI A.N. MARE
(CR 11)
Date of Pronouncement of
JUDGEMENT /ORDER
19.09.2019
JUDGEMENT /ORDER signed by
P.O. on
30.09.2019
JUDGEMENT /ORDER uploaded on 30.09.2019
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