Final Order 1

Order Details: Notice of Motion
Pdf Text: ..1.. NM NO. 1185/2020
MHCC010032742020
IN THE CITY CIVIL COURT FOR GREATER MUMBAI
NOTICE OF MOTION NO. 1185 OF 2020
IN
S.C. SUIT NO.2534 OF 2018
Vetrivel S/o Raja Nadar ….Plaintiff.
Versus
1. Smt. Maharshi R. Nadar
2. Viveka Laxmi Nadar w/o Narayan Nadar. ...Defendants.
Advocates
R.S. Tripathi for the plaintiff.
Manmohan Rao for defendants.
CORAM : HIS HONOUR JUDGE
Sunil T. Soor.
(COURT No.: 2)
DATED : 1st March, 2021
ORAL ORDER
Heard both parties on notice of motion moved on behalf of
defendant no.2 for setting aside order dated 31.01.2019 passed in
notice of motion no.3809/2018 and directing the plaintiff to deposit
total monthly rent of Rs.55,000/- per month in respect of shop no.1, 1A,
1B, 1C, furnish Leave and License Agreement and join all the family
members as necessary parties to the suit.
2. Perused the notice of motion alongwith affidavit of defendants,
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reply of the plaintiff and proceedings of the case.
3. Suit is for permanent injunction restraining defendants from
dispossessing the plaintiff from suit premises i.e., shop no.1A, 1B, 1C
and 1D without following due process of law and from creating third
party interest in the suit premises. Defendant no.1 is the mother and
defendant no.2 is sister of the plaintiff.
4. Contention of advocate for defendants is that suit premises are
ancestral properties. Suit premises were in the name of father of the
plaintiff. After demise of father of the plaintiff, suit premises are
transferred in the name of defendant no.1. Other family members are
having equal shares in the suit premises. Plaintiff has not joined other
sisters in the suit as necessary parties. Hence the suit is not
maintainable for non-joinder of necessary parties. Plaintiff by playing
fraud, transferred electric meter in his name without obtaining no
objection certificate from other members of the family and in spite of
objection of defendant no.1 for transferring electric meter in the name
of the plaintiff. Defendants were collecting rent of Rs.55,000/- per
month from suit premises. Hence they are entitled to recover rent of
Rs.55,000/-per month from the plaintiff. Thus main contention of
advocate for defendant is that the plaintiff obtained injunction order
dated 31.01.2019 in notice of motion no.3809 of 2018 on the basis of
fraudulent documents and by suppressing material facts. Defendants
filed on record, some documents in support of their contention and
prayed for allowing notice of motion. Advocate for defendants relied on
following citations :-
(i) AIR 1994 SUPREME COURT 853, S.P. Chengalvaraya Naidu (dead)
by L.Rs., v. Jagannath (dead) by L.Rs. and others.
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(ii) (2007) 15 SUPREME COURT CASES 750, State of Himachal
Pradesh Versus Milkhiram (Dead) by LRS. and others.
(iii) 1995 (32) DRJ (Delhi High Court)., Paramount Publicity (P) Ltd.,
Versus M.C.D.
5. Contention of advocate for the plaintiff is that after 13 months
of passing order dated 31.01.2019 in notice of motion no.3809/2018,
defendant have taken out this notice of motion. Notice of motion
no.3809/2018 is decided on merits after hearing both parties. Hence
there is no provisions either under Bombay City Civil Court Rules or
Civil Procedure Code to set aside orders passed on merits. Defendants
have not preferred appeal against order dated 31.01.2019. Contentions
raised by defendants in present notice of motion is matter of evidence.
For recovery of rent, defendants should approach before the Small
Causes Court and this Court has no jurisdiction to entertain matter of
recovery of rent. Plaintiff is ready to tender all documents at the time of
his evidence. Hence he prayed for dismissal of notice of motion.
6. This Court gone through the citations relied on by advocate for
defendants. It is evident that said citations are pertaining to decisions
on merits of the case, State Government was not joined as necessary
parties and interim injunction was obtained by concealing and
suppressing material facts. In the present case, notice of motion
no.3809/2018 is decided on merits on 31.01.2019 after hearing both
parties. Fraud or suppression of facts and documents are to be proved
at the trial. Suit is for permanent injunction restraining defendants from
dispossessing the plaintiff from suit premises i.e., shop no.1A, 1B, 1C
and 1D without following due process of law and not to create 3rd party
interest in the suit premises. Suit is not for partition of ancestral
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property. Hence all the family members are not necessary parties to the
suit. Thus citations relied on by advocate for defendants are not
applicable under the facts and circumstances of the case.
7. From the perusal of written statement of defendants at Exh.3, it
is evident that defendants raised all contentions in their written
statement which they have raised in present notice of motion. In para
no.10 of the written statement, defendants admitted that husband of
defendant no.1 died in the year 2004 but he has not given any property
to her and defendant no.2 in the City of Mumbai.
8. From the perusal of order dated 31.01.2019 in notice of motion
no.3809/2018, it appears that defendants raised all objections and after
considering case of both parties, injunction is granted restraining
defendant no.1 from creating third party interest in the suit premises
alongwith residential premises. Now all the contentions raised in
present notice of motion are matter of trial and defendants can prove
the same at the time of trial. This Court has no jurisdiction to try the
matter of recovery of rent as said jurisdiction exclusively lies with the
Small Causes Court under section 41 of the Presidency Small Causes
Courts Act, 1882. Prayer of defendants for directing the plaintiff to
produce Leave and License Agreement is not tenable at this stage.
Present notice of motion is devoid of merits and not sustainable in law.
In the result, following order.
ORDER
Notice of Motion 1185/2020 is rejected and disposed of.
(Sunil T. Soor)
Judge
Date : 01.03.2021 Gr. Mumbai.
Typed on : 01.03.2021
HHJ signed on : 01.03.2021
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
DATED 01.03.2021, 5.30 p.m.
UPLOAD DATE AND TIME Mrs. V. N. Rajgole.
NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.)
H.H.J. Shri. S. T. Soor
C.R.No.02
Date of Pronouncement of
JUDGMENT/ORDER
01.03.2021
JUDGMENT/ORDER signed by P.O.
on
01.03.2021
JUDGMENT/ORDER uploaded on 01.03.2021
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