Order 1

Order Details: Order below exhibit
Pdf Text: ORDER BELOW EXH.16 AND 17 1 IN SU NO.927/2019
IN THE CITY CIVIL COURT FOR GREATER BOMBAY
AT MUMBAI.
ORDER BELOW EXH.16 AND 17
IN
L.C. SUIT NO.927 OF 2019
The Vasudha Co-operative Housing Society. …. Plaintiffs
Versus
Smt. Damyanti R. Pujara and Others ...Defendants
Adv. Pratap Singh with Adv. Nitin Borale for the Plaintiff
Defendant No.1 in person present.
C.A. of defendant Nos.2 and 3
Adv. Smita Chavan for defendant Nos.4 to 6 / MCGM.
CORAM : HIS HONOUR JUDGE
Shri S.D.Kulkarni
(Court Room no.8)
DATED : 12th January, 2022
O R A L O R D E R
1. The defendant Nos 1 to 3 filed this application and prayed
for dismissal of the suit on the ground that plaintiff has played fraud
and abuse process of law by suppressing on going matters before the
Hon’ble High Court and existence of status quo order at the time of
filing of the suit. The plaintiff also prayed that initiate contempt
reference / proceedings against the plaintiff / society.
2. The defendant Nos.1 to 3 filed this application u/s. 151 of
the Code of Civil Procedure Code and prayed to dismiss the suit. The
allegation of defendant that the plaintiff has suppress the pending
matters before the Hon’ble High Court which is Writ Petition No.2190 of
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2015 and the First Appeal No813 of 2013 in both these matters the
Hon’ble High court has pass the Status Quo Order in the year 2015 and
2012 respectively. The plaintiff also suppresses society resolution dated
16.062018, and there is no cause of action for filing the suit.
3. The contention of defendant Nos.1 to 3 that the reliefs
asked by the plaintiff society in the present suit are similar and under
the same bearing to the matter pending before the Hon’ble High Court
Writ Petition No.2190 of 2015 and First Appeal No.813 of 2012.
Therefore, the present suit is not maintainable and needs to be
dismissed. The plaintiff has not come before the court with the clean
hands. It has suppressed many important facts, orders of the court
therefore suit needs to be dismissed. The plaintiff filed the present suit
by playing fraud on defendant Nos.1 to 3, he seeks similar relief by
abusing process of law. Therefore, suit liable to be dismissed.
4. The advocate for the plaintiff strongly opposed the
application and submitted that suit cannot be dismissed u/s. 151 of the
Code of Civil Procedure. The application filed by the defendant Nos.1 to
3 not falls under the provision of section 151. Section 151 of Civil
Procedure Code gives inherent power of the Court to make such orders
as may be necessary for the ends of justice or to prevent abuse of the
process of the court. The power is discretionary here in this case this
provision could not be used to dismiss the suit on the fact that plaintiff
has suppressed the same material facts. Therefore, the plaintiffs
contention that applications are devoid on merit hence, prayed for
dismissal.
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5. Perused the application filed at Exh.16 and Exh.17. I have
also gone through the written argument filed by the defendant Nos.1 to
3 vide at Exh.16-A and 18. Heard defendant Nos.1 to 3 in person and
advocate for the plaintiff.
6. The main allegation of defendant Nos.1 to 3 is that the
plaintiff has suppressed the material fact that is pendency of the
proceeding before the Hon’ble High Court and the Status Quo Order
passed by the Hon’ble High court in the said proceeding. The main
grievance of defendants is that there is no cause of action for filing the
suit. The plaintiff has suppressed the material facts and thereby
fraudulently by abusing of process of law filed parallel proceeding in
two different courts between the same parties.
7. Therefore, it is necessary to go through the pleadings and
prayers of the present suit as well as the matters pending before the
Hon’ble High Court. The defendant Nos.1 to 3 has filed on record the
copy of Writ Petition No.2190 of 2015 filed by the defendant Nos.1 to 3
against defendant No.4 and plaintiff i.e. Vasudha Co-operative Housing
Society through secretary / chairman. The present suit is filed by the
Vasudha Co-operative Housing Society through its chairman against the
defendant / MCGM its officer and defendant Nos.1 to 3. So, it shows
that the parties in Writ Petition No.2190 of 2015 and the party in the
present suit is one and the same. I have already stated that the Writ
Petition No.2190 of 2015 is filed by defendant Nos.1 to 3 against the
plaintiff therein defendant Nos.1 to 3 prayed that :
i) For a writ or an order in the nature of writ to Respondent
Corporation quashing and setting aside the impugned
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notices dated 19.1.2015 and 21.2.2015 and declaring the
same as ill-motivated, bad and illegal under the law.
ii) For a writ or an order in the nature of writ to Respondent
Corporation 3 to rectify wrongly approved plans of 7.7.05
and 3.5.06 and plus other records created, wherein the
legitimate flat no.9 (of 1967) is approved as an
unauthorized flat, to furnish Site Visit Report and
sanctioned plan of the bldg.. and that letter dated
16.8.2011 for regularization is valid, subsisting and binding
on the Respondent.
iii) For a writ or an order in the nature of writ to Respondent
Corporation 2, that not to act upon the notices dated
19.1.15 and 21.2.15 to pull down the building and restrain
from cutting connection of water, electricity and gas.
iv) For a writ or an order in the nature of writ to Respondent
Corporation for appointment of Technical Advisor
Committee.
v) For an order in the nature of writ to Respondent
Corporation 3 to place on records of the Hon’ble Court
details of Specific approval obtained from Competent
Authorities mentioned in the BPES letter
No.CE/18231/BPES/AM dated 29.3.06.
vi) For an order that pending hearing and final disposal of the
present Petition Respondent Corporation 3 be restrained
from sanctioning the Respondent No.4 (society)’s
development plans, until the wrongly approved plans of
7.7.05 and 3.5.06 are rectified by Respondent 3.
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8. In the present suit the plaintiff society prayed that :
a) That this Hon’ble Court be pleased to restrain the
Defendants No.1 to 3 herein permanently by an Order and
Injunction, from causing any obstruction, annoyance,
nuisance, hindrance and/or disturbance in respect of
smooth functioning of said redevelopment scheme and / or
in respect of the plans submitted by the Plaintiff Society
through their Architects / Engineers, in any manner,
whatsoever, in respect of suit premises consisting of ground
plus two upper floors i.e. total ten flats lying and situated
plot of land bearing Plot No.D-2/403, situated on Survey
No.III of Chembur, C.T.S. No.1621 and 1621/1 to 4, Village
Chembur, Taluka Kurla, M.S.D., Mumbai – 400 071 having
an area admeasuring about 645.5 sq. metres or
thereabouts;
b) This Hon’ble Court be pleased to direct the Defendants
No.4 and 5 herein by a mandatory order of this Hon’ble
Court directing them to consider the proposal put up by the
Plaintiff Society and further to discontinue the water and
electricity connection in respect of said suit building to
enable the Plaintiff Society to proceed with the
redevelopment work smoothly as per the Rules and
Regulations of the Defendants No.4,5 and 6 in respect of
suit premises described in prayer (a) hereinabove.
c) This Hon’ble Court be further pleased to direct the
Defendant NO.6 to take appropriate steps for the
implementation of the redevelopment Project of Plaintiff
Society by taking necessary steps such as discontinuing the
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water and electric supply of the suit premises building
which is in dangerous and dilapidated condition.
d) Pending the hearing and final disposal of the Suit, this
Hon’ble Court be pleased to restrain the Defendant No.1 to
3 temporarily by an Order and Injunction from causing any
obstruction, annoyance, nuisance, hindrance and / or
disturbance in respect of smooth functioning of said
redevelopment scheme and / or in respect of the plans
submitted by the Plaintiff Society through their Architects /
Engineers, in any manner, whatsoever, in respect of suit
premises consisting of ground plus two upper floors i.e.
total ten flats lying and situated plot of land bearing Plot
No.D-2/403, situated on Survey No.III of Chembur, C.T.S.
No.1621 and 1621/1 to 4, Village Chembur, Taluka Kurla,
M.S.D., Mumbai – 400 071 having an area admeasuring
about 645.5 sq. metres or thereabouts;
e) Pending the hearing and final disposal of the suit, this
Hon’ble Court be further pleased to direct the Defendant
No.6 to take appropriate steps for the implementation of
the redevelopment Project of Plaintiff Society by taking
necessary steps such as discontinuing the water and electric
supply of the suit premises building which is in dangerous
and dilapidated condition as described in prayer (a)
hereinabove.
9. So on going through the prayer of the Writ Petition, it
reveals that Writ Petition is filed by the defendant Nos.1 to 3 by
declaring the notices dated 01.09.2015 and 21.02.2015 is bad and
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illegal. The contention of the defendant Nos.1 to 3 that the less area of
the flat No.9 is shown in possession of these defendants by not
considering the area of the terrace adjacent to flat No.9 which is
regularized and is in approved plan but same is not considered while
issuing notice dated 01.09.2015. The another notice is issued to evict
defendant Nos.1 to 3 from flat No.9. The prayers in Writ Petition are
mainly on the basis that the respondent No.3 / MCGM therein has
wrongly approved plan and created record and shown the flat No.9 as
unauthorized flat. So the contention of defendant Nos.1 to 3 that is flat
No.9 which defendant No.1 to 3 owned and possesses is authorized
legitimate and is regularized. The defendant No.1 to 3 also prayed for
restraining / MCGM from demolishing their flat in pursuance to the
notice dated 19.01.2015 and 21.02.2015.
10. On the other hand the prayers of the suit is concerned are
completely different. The plaintiff / Society prayed that defendant /
MCGM be directed to consider the proposal and to proceed with the
redevelopment work. Further the plaintiff prayed that defendant Nos.1
to 3 be restrained from causing any obstruction in smooth functioning
of redevelopment scheme. The plaintiff also prayed that defendant No.6
is to take appropriate steps for the implementation of redevelopment
project. So the prayers in the Writ Petition and in the suit are totally
different. In the suit the plaintiff has not challenged any approved or
sanctioned plan. The plaintiff has not challenged any notices of
demolition issued by the MCGM. The plaintiff in the suit only wants to
redeveloped the plot and there should not be any obstruction to it.
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11. The defendant Nos.1 to 3 filed the Writ Petition only for the
rectification of the approved plan thereby their flat No.9 which was
declared as unauthorized. The Writ was filed by the defendant Nos.1 to
3 mainly to challenge the demolition notices issued by the MCGM. But
here in this suit plaintiff / society prayed for declaration and injunction
in respect of smooth functioning of redevelopment scheme, sanctioning
of plan. So in my opinion plaintiff can not be restrained from instituting
the suit because of the pendency of Writ Petition. The Writ Petition is
filed by the defendant Nos.1 to 3 to safeguard their constitutional rights
but this Civil Suit filed by the plaintiff society to safeguard their Civil
rights therefore, in my opinion there are two different proceedings. The
different relief prayed by both the parties and there is no conflict of
decision.
12. The defendant Nos.1 to 3 have filed on record copy of
order of Notice of Motion No.882 of 2005 in Suit No.5585 of 2005. In
that Notice of Motion defendant Nos.1 to 3 prayed for restraining the
defendant / MCGM for giving the permission to the proposal in the
form of IOD and CC. On hearing both the sides the said Notice of
Motion is made absolute. The said suit bearing No.5585 of 2005 has
also disposed of as become infratuous in view of resolution dated
12.05.2011.
13. The defendant Nos.1 to 3 relied on the decision in the case
of S.P. Chengal Varaya Naidu V/s. Jagannath and Others (1994) 1
Supreme Court Cases 1. Then the Hon'ble Supreme Court held that
Judgment or Decree obtained by fraud – to be treated as nullity and can
be questioned even in collateral proceeding. The defendant Nos.1 to 3
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further relied on the decision in the case of Delhi Development
Authority V/s. Bankman Co-operative group Hsg. Society and Others
(2017) 7 Supreme Court Cases 636. Therein the Hon'ble Supreme Court
held that allotment of land to revive society when, revival itself illegal
and there are allegations of fraud. The liquidation, in collusion with
builder Mafia only to grab land cannot be permitted.
14. Both these authorities are not helpful to defendant Nos.1 to
3 as because the facts in the present case are different. The plaintiff has
not obtained any Judgment, Decree or any order by playing fraud.
There is no sufficient material filed on record by defendant Nos.1 to 3
to show that plaintiff society played fraud and obtained any order from
this court. Therefore, the above authorities are not helpful to the
defendants.
15. The defendant Nos.1 to 3 further relied on the decision in
the case of K.D. Sharma V/s. Steel Authority of India Ltd. - Civil Appeal
No.4270 of 2008.
Para 39 :
If the primary object as highlighted in Kengiston income tax
Commrs is kept in mind, an applicant who does not come
with Candid facts and “clean breast” cannot hold writ of the
Court with “soiled hands”. Suppression or concealment of
material facts is not an advocacy is a jugglery, manipulation,
manoeuvring or misrepresentation, which has no place in
equitable and prerogative jurisdiction. If the applicant does
not disclose all the material facts fairly and truly but states
them in a distorted manner and misleads the Court, the
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Court has inherent power in order to protect itself and to
prevent an abuse of its process to discharge the rule nisi and
reguse to proceeds further with examination of case on
merits. If the Court does not reject the petition on that
ground, the court would be failing in its duty. In fact, such an
applicant requires to be dealt with for Contempt of Court for
abusing the process of the Court.”
Therein it is also held that “a litigant, who approaches the Court, is
bound to produce all the documents executed by him which are
relevant to the litigation. If he withholds a vital document in order to
gain advantage on the other side then he would be guilty of playing
fraud on the Court as well as on the opposite party.
16. Here in this case the plaintiff society has not withheld any
documents or suppress any documents which was executed by plaintiff
society. Here in this case the Notice of Motion filed by the plaintiff is
dismissed on hearing both the sides. At the time of hearing the present
defendant Nos.1 to 3 filed on record the order passed by the Hon'ble
High Court in Writ Petition No.2190 of 2015. Therefore, the act of the
plaintiff could not be a deception in order to gain by anothers loss.
17. I have already stated that the Writ Petition filed by the
defendant mainly on a ground that their flat No.9 where they are
residing is not an unauthorized flat, which is a terrace flat, however, the
society and the MCGM have declared the said flat as unauthorized.
Therefore, defendant Nos.1 to 3 filed Writ Petition in the Hon'ble High
court to safeguard their rights.
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18. The defendant Nos.1 to 3 filed their reply in Civil
Application No.2124 of 2015. In the reply these defendants themselves
prayed that, “one corrected plan” needs to be approved by the
respondent corporation demarcating correctly the flat No.9 (with its
adjoining regularized terrace), shown / approved as an authorized flat
and also a site visit report of the existing building is necessary by the
building proposal department before the building is pull down for
redevelopment. So it shows that the alleged building is dilapidated in
condition, therefore all parties are agreed for its redevelopment. So
prayer in this suit regarding redevelopment is missing in a Writ Petition
therefore, the suit can be proceeded or can be decided on merit.
19. The defendant Nos.1 to 3 filed the application u/s.151 of
the Civil Procedure Code therefore, I have to see whether this
application filed by the defendants falls under above section or not.
Whether the above provision is helpful to defendant Nos.1 to 3 or not.
The section 151 of Civil Procedure Code reads as under :
Nothing in this Court shall be deemed to limit or otherwise
affect the inherent power of the Court to make such orders
as may be necessary for the ends of justice or to prevent
abuse of the process of the Court.
20. There is one another similar provision in the Civil
Proceeding code which states about filing suit during pendency of
another proceeding. The Section 10 of the Civil Procedure Code reads
as under -
No Court shall proceed with the trial of any suit in which
the matter in issue is also directly and substantially in
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issue in a previously instituted suit between the same
parties, or between parties under whom they or any of
them claim litigating under the same title where such suit
is pending in the same or any other court in (India)
having jurisdiction to grant the relief claimed, or in any
Court beyond the limits of (India) established or
continued by the Central Government and having like
jurisdiction, or before the Supreme Court.
Explanation – The pendency of a suit in a foreign Court
does not preclude the Courts in India from trying a suit
founded on the same cause of action.
21. So, I have perused the copy of the Writ Petition No.2190 of
2015. I have also gone through the copy of First Appeal 813/2012 and
order passed by this court in Notice of Motion No.4106 of 2019 in Suit
No.927 of 2019. The defendant Nos.1 to 3 has also filed on record the
order passed by the Hon’ble High Court in Writ Petition in between the
same parties and grant the Status Quo to demolition of the suit
premises.
22. Ongoing through the provision of Section 151 of the Civil
Procedure Code and Section 10 of the same. The applications of the
plaintiff are not fit in the above provision. Only suppression of previous
litigation and suppression of previous order, cannot be the sole ground
to dismissed the suit. Here in this case plaintiff asked relief against
defendant Nos.1 to 3 that they should not obstruct or cause disturbance
in smooth functioning of re-development scheme. So, also plaintiff
prayed that directing defendant No.6 that is defendant / MCGM to take
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appropriate steps for implementation of re-development project, the
above prayer is not in the said Writ Petition. Therefore, there are two
different proceedings, and suit can not be dismissed u/s.151 of the Civil
Procedure Code therefore, in my opinion applications are not tenable.
Suit of the plaintiff cannot dismiss because of the pendency of Writ
Petition in between the same parties. Considering this pass the
following order :
ORDER
1. Application filed by defendant Nos.1 to 3 at Exhibit No.16 and
Exhibit No.17 stands rejected.
(S.D.Kulkarni)
Ad-hoc Judge,
City Civil Court,
Date : 12.01.2022 Gr. Mumbai.
Dictated on : 12.01.2022
Transcribed on : 17.01.2022
Signed by HHJ on: 17.01.2022
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ORDER BELOW EXH.16 AND 17 14 IN SU NO.927/2019
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE AND TIME : 03.00 p.m.
NAME OF STENOGRAPHER : Mrs. J.S. Chavan
Name of the Judge (With Court
Room no.)
HHJ Shri. S.D.Kulkarni
C.R. no.08
Date of Pronouncement of
JUDGMENT/ORDER
12.01.2022
JUDGMENT/ORDER signed by
P.O. on
17.01.2022
JUDGMENT/ORDER uploaded
on
18.01.2022
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