Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM 1073/18
IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
Notice of Motion No. 1073 of 2018
In
S.C. Suit No. 651 of 2018
Nandesh Kisan Sabunkar ...Plaintiff.
V/s.
1. State of Maharashtra & Ors. ...Defendants.
Appearances: Ld. Adv. Mr. A.R. Pande for the plaintiff.
Ld. Adv. Mr. Sachin Kadam for deft. Nos.1 to 3
Coram : D.K. Gudadhe, Adhoc Judge.
(C.R.No. 12)
Dated: 13th November, 2018
Order
1. This notice of motion is taken out by the plaintiff to
restrain defendants from treating the suit premises as a public place
and treating the business carried on in the suit premises as a Game
and/or Public Amusement and/or Lottery and/or Gambling and;
taking any consequential action thereto, in a suit for permanent
injunction for the same with main relief of declaration that the suit
premises is plaintiff's business of playing cards, scratch cards and
coupons and does not fall within the definition of game and/or Public
Amusement and/or Lottery and/or Gambling. The facts of the
plaintiff's case in short are under.
2. According to the plaintiff, he is a tenant of Shop No. 4
(4A) in a building known as Vitthal Niwas, Jacob Circle, Mumbai and
-- 1 of 7 --
2 NM 1073/18
same has been more specifically described in para 1 of the plaint and
hereinafter referred to as the 'suit premises'. The plaintiff organizes
scratch card/coupon entertainment games in the suit premises which
are available to the customers by paying on a nominal fees and the
said business is hereinafter referred to as the 'suit business for the sake
of brevity.
3. According to the plaintiff, he has been conducting the said
business since 2015 and the type of business is purely entertainment
games and do require skills to play the same. Such game does not fall
within any of the definition of gambling under The Bombay
Prevention of Gambling Act, 1887 or The Lotteries (Regulation) Act,
1998. In spite of this, the police personnel of Agripada Police Station,
Mumbai, keep visiting the suit premises and asked the plaintiff to close
down his business as there are oral directions from the higher
authorities to stop such the game business. The plaintiff tried to
convince them that such game does not fall within the prohibitory
activities under the Gambling Act or under The Lotteries (Regulation)
Act. However, all the defendants are of a view that the suit business is
nothing but the gambling, but, such a view is totally illegal. Because
of this view of the defendants and earlier action of their personnel
which fortifies their view, the plaintiff has an apprehension that the
defendants may close their business high handedly and without
adopting due process of law. In a case defendants succeed in their
illegal acts then the plaintiff would suffer great inconvenience and
may sustain irreparable loss also. Therefore, the plaintiff in order to
protect his business filed this suit and taken out this notice of motion.
4. The defendants vide their reply as well as written statement
-- 2 of 7 --
3 NM 1073/18
opposed the plaintiff's contention that carrying out of the said business
is not a gambling or opposes the provisions of The Lotteries
(Regulation) Act. They further denied the plaintiff's contention about
visiting of Police Personnel to business place of the plaintiff and
threatened to shut down his business. However, they contended that
the plaintiff's alleged business is an activities which is banned under The
Lotteries (Regulation) Act, as well as The Bombay Prevention of
Gambling Act, 1887. They further contended that the plaintiff is
unauthorizedly carrying out such business. Therefore, according to
them, the suit itself is badinlaw, not maintainable and deserves to be
dismissed. Therefore, according to them, even the notice of motion is
not maintainable.
5. On these rival contentions of the parties, the points that
arise for determination are as follows. I have given my findings thereon
for the reasons mentioned in the subsequent paras.
Sr.No. POINTS FINDINGS
1. Whether the plaintiff has got prima facie
case ? No.
2. Whether the balance of convenience lies
in favour of the plaintiff ?
No.
3. Whether the plaintiff would suffer
irreparable loss, if injunction is withheld ? No.
4. What order? As per final order.
-- 3 of 7 --
4 NM 1073/18
Reasons:
As to Point No.1:
6. The plaintiff in order to show that the business which he
carries out do not amount to gambling or lottery as it contemplates to
The Bombay Prevention Of Gambling Act and The Lotteries
(Regulation) Act, did not file any document to show so. However, he
has given the full description of the manner in which such game is
played in para 6 of the plaint. To understand whether the particular
game is gambling or not, it is better to reproduce the same. The said
para 6 reads thus,
“The plaintiff states that the suit business is a game of
entertainment in which people pay for the opportunity to win
prizes. The plaintiff states that the suit business is a game in
which customers purchase a scratch card / coupon / ticket
preprinted with numbers and predeclared result. The said
scratch card / coupon / ticket is made of a piece of specially
prepared heavy paper, thin cardboard, plastic coated paper,
cotton paper blend or thin plastic marked with distinguishing
motifs and used as one of a set for playing card games. The said
scratch card / coupons are typically palm sized for convenient
handling and all the printing costs and other such costs for the
making of the scratch card / coupons are being conducted by the
plaintiff alone on its own responsibility”.
7. On reading of the above mentioned manner of playing
game, it nowhere seen that it is a game of mere skill. On the contrary,
what is seen from this is that, it is a mere a game of chance. Why I am
emphasizing on this is for the fact that the Sec. 13 of The Bombay
Prevention of Gambling Act, exempted the game of mere skill. The
plaintiff though contended that it is a game of mere skill, but as
observed earlier, it nowhere seen that whether any skill is require to
play the said game. Even the skill is skill of average man and not for
-- 4 of 7 --
5 NM 1073/18
the person of unusual skill if taking the average man, chance and not
skill is the deciding factor as to whether the particular amounts to
gambling or not.
8. In addition to above, what is important to note here is that
though the plaintiff contended that the defendant personnel visited the
suit business and warned to close down the same without adopting due
process of law, but what due process the plaintiff expect is not
mentioned in the pleadings. The Bombay Prevention Of Gambling Act,
as well as The Lotteries (Regulation) Act, read with Criminal Procedure
Code, laid down the procedure to be followed by an investigating officer
for investigation into any offence. In view of this power vested in
investigating officer, he can very well prevent even commission of such
offence. Such power cannot be abridged by any process of law and
particularly, not in the case at hand. If the defendants want to
investigate into the nature of business which the plaintiff is carrying out
in order to ascertain whether it amounts to gambling / lottery or not.
Such action cannot be restrained by any court process.
9. However, it will not be out of place to mention here that if
such action is malafide and did, with intention to cause prejudice to any
citizen then the defendants would definitely be liable for such action.
10. Thus, what is seen from the above discussion and from the
plaintiff's description of his business, it is seen that game in questioin is
not purely a skill game and further defendants cannot be restrained
from discharging their statutory liability to ascertain whether any
offence is committed or being committed or about to be committed. In
view of these facts I do not have any hesitation to hold that the plaintiff
-- 5 of 7 --
6 NM 1073/18
does not have prima facie case. Accordingly, I answer this point.
As to Point Nos. 2 & 3:
11. So far as these points are concerned, since the plaintiff has
got no prima facie case, I do not think he would suffer any
inconvenience and sustain any irreparable loss if injunction is not
granted. Accordingly, I answer these two points in the negative.
As to Point No. 4 :
12. In view of my findings to the above points and reasons for
the same, I hold that Notice of Motion deserves to be rejected.
Accordingly, I answer to this point and proceed to pass order in
following terms:
Order
1. Notice of Motion is hereby rejected.
2. Accordingly, Notice of Motion is disposed of.
(D.K. Gudadhe)
Adhoc Judge,
13.11.2018 City Civil Court, Gr. Bombay.
Dictated on : 13.11.2018
Transcribed on : 14.11.2018
Signed on : 15.11.2018
-- 6 of 7 --
7 NM 1073/18
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE & TIME : 15.11.2018 5.25 P.M.
NAME OF STENOGRAPHER : S.S.BATHE
Name of Judge (with Court Room No.) Shri D.K. Gudadhe
(C.R.No.12)
Date of Pronouncement of
JUDGMENT /ORDER
13.11.2018
JUDGMENT /ORDER signed by P.O. on 15.11.2018
JUDGMENT /ORDER uploaded on 15.11.2018
-- 7 of 7 --