Order 2

Order Details: Notice of Motion
Pdf Text: N/m No. 2551/21 in S.C.Suit No. 1099/2020. 1 Order.
MHCC010084122021
Presented on : 22-10-2021
Registered on : 22-10-2021
Decided on : 20-12-2022
Duration : 1 years, 1 months, 29 days
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
NOTICE OF MOTION NO. 2551 OF 2021
IN
COUNTER CLAIM (EXHIBIT NO. 6)
IN
SHORT CAUSE SUIT NO. 1099 OF 2020
Chandrashekhar Sitaram Joglekar and one )...Applicants/
Defendants no.1 and 2
Versus
Jayshree Vijaykumar Joglekar )...Plaintiff
CORAM : HIS HONOUR JUDGE SHRI R.R.BHAGWAT.
(COURT ROOM NO.66).
DATE : 20th DECEMBER, 2022.
Shri Sandeep Jalan, Advocate for the applicants/ defendants no.1 and
2.
Shri Rajeev Matkar, Advocate for the plaintiff.
ORDER
1. Defendants no.1 and 2 have taken out the notice of motion
to order and decree the relief claimed in clauses (a) and (b) in the
counter claim (Exh.6) in Suit No.1099/2020 and to dismiss Suit
No.1099/2020. (Parties are referred with their nomenclatures in the
suit only.)
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N/m No. 2551/21 in S.C.Suit No. 1099/2020. 2 Order.
2. Perused notice of motion and affidavit in reply. I have also
gone through the suit proceedings and written notes of arguments filed
by the defendants. Heard learned counsel Sandeep Jalan for the
defendants and learned counsel Rajeev Matkar for the plaintiff.
3. The defendants have taken out notice of motion in counter
claim(Exh.06) in which they have prayed for mandatory injunction
against the plaintiff and disclosure of accounts. The defendants relied
upon Para 3, 8 to 34 in the counter claim (Exh.06). They further relied
upon Order VIII Rule 3,4,5 and 6G of the CPC for stating that written
statement must specifically deny each allegations of facts set out in the
plaint. The plaintiff denied contents in the counter claim evasively by
filing written statement (Exh.07) to counter claim. Learned counsel Shri
Sandeep Jalan for the defendants read out written statement to
counterclaim (Exh.07) and submitted that written statement (Exh.07)
is consisting of only two paragraphs and the plaintiff has relied upon
contents in the plaint. As there is no specific averments in written
statement to counter claim (Exh.06), the defendants prayed to allow
the notice of motion.
4. The plaintiff come up with the case that notice of motion is
not maintainable and it is taken out on account of misconceived notion
of law and is liable to be rejected. Counter claim is filed in the suit and
it is not a separate suit. There is always interdependence of the main
suit and counter claim. Defendants must have understood the provisions
of Order VIII Rule 6A to 6G of the CPC. The defendants have not
chosen to file a separate suit. The defendants are trying to seek
separation of counter claim for adjudication. There is sufficient denial
to the counter claim in the plaint. The plaintiff prayed for dismissal of
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N/m No. 2551/21 in S.C.Suit No. 1099/2020. 3 Order.
the notice of motion.
5. Learned counsel Shri Sandeep Jalan for the defendants
advanced arguments inconsonance with the case pleaded in affidavit in
support. Ld. Counsel Shri. Rajeev Matkar for the plaintiff read out
provision of Order VIII Rule 6A of the CPC and submitted that the
counter claim shall have the effect as a cross suit and written statement
is filed in answer to the counter claim. He further submitted that
counter claim is treated as plaint and governed by the rules applicable
to the plaint. By giving stress upon these aspects, he proceeded to state
that the defendants should have issued writ of summons as per Order V
Rule 1 of the CPC. By harping upon this aspect, he opposed the notice
of motion.
REASONS
6. Though learned counsel Shri. Rajeev Matkar for the
plaintiff relied upon Order VIII Rule 6A(4) of the CPC to state that writ
of summons should have been issued to the plaintiff by the defendants,
it is not expected to be done. Order VIII Rule 6A(4) of the CPC cannot
be stretched to the extent of asking the plaintiff herself to participate in
the suit proceeding for answering the counter claim by issuing writ of
summons under Order V R 1 of the CPC at the behest of the defendant.
Order VIII Rule 6A(3) of the CPC has given liberty to the plaintiff to file
a written statement in answer to the counter claim. While providing
such legal right, procedure of service of writ of summons upon the
plaintiff is not prescribed in entire scheme of Order VIII Rule 6(A) to
6(G) of the CPC. Therefore, this submission cannot be taken into
consideration.
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N/m No. 2551/21 in S.C.Suit No. 1099/2020. 4 Order.
7. The defendants made counter claim (Exh.6) in the suit filed
by the plaintiff. The plaintiff has relied upon contents in the plaint
while filing written statement (Exh.7) to counter claim (Exh.6).
Therefore, the plaintiff has not specifically denied allegations in the
counter claim as required by Order VIII Rule 3 of the CPC. Learned
counsel Shri. Sandeep Jalana relied upon Order VIII Rule 4 and 5(1) of
the CPC to state that it should be taken as deemed admission on the
part of the plaintiff and insisted to decree the counter claim. If case of
the plaintiff and that of defendants are juxtaposed, the plaintiff as well
as defendants are staking claim over the shop run in the suit premises.
The plaintiff and the defendants have their own versions pleaded in the
plaint and counterclaim respectively. While reading written statement
(Exh.7) to counter claim (Exh.6) , it has to read in the context of
contents in the plaint. It is for the reason that the plaintiff has
specifically written in para 2 of written statement (Exh.7) that she
adopts her plaint as her written statement to the counter claim.
Contents in the plaint and counter claim are not going in one direction.
Failure of the plaintiff to specific denial contents in counter claim
(Exh.6) may attract presumption under Order VIII Rule 5(1) of the CPC,
but discretion is given to the court to require any fact so admitted to be
proved otherwise by than such admission as per proviso to Rule 5(1) in
Order VIII of the CPC. Failure of the plaintiff to deny the case in counter
claim (Exh.6) may attract provision of deemed admission, but it is not
an express admission. If provision of Order XII Rule 6 of the CPC is read
with Order VIII Rule 5 of the CPC, there is much difference in concept
of admission in both these provisions. Order XII Rule 6 of the CPC
expect admission of fact either in the pleading or otherwise whether
orally or in writing. Positive act of admission is expected in Order XII
Rule 6 of the CPC. Absence of denial of facts pleaded in counter claim
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N/m No. 2551/21 in S.C.Suit No. 1099/2020. 5 Order.
is very weak foundation for resorting to provision of Order XII Rule 6
of the CPC in order to decree the counter claim. Even if, it is assumed
that counter claim may be decreed on the strength of such admission, it
can not be relied upon to over throw case of the plaintiff pleaded in the
plaint. It is not possible to dismiss the suit which has assertion contrary
to the case putforth in the counter claim. For this reasons, the suit as
well as counter claim are liable to be kept pending for adjudication on
merit. For all these reasons, I pass the following order :
ORDER
1. Notice of Motion No. 2551 of 2021 is dismissed.
2. Proceeding of Notice of Motion No. 2551 of 2021 is closed.
(R.R.BHAGWAT)
Judge,
City Civil Court,
(Court Room No.66)
Date : 20/12/2022. Mumbai.
1. Dictated on : 19 & 20/12/2022.
2. Transcribed on : 19 & 20/12/2022.
3. Corrected on : 21/12/2022.
4. Signed on : 21/12/2022.
5. Delivered to Certified :
Copy Section on
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
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N/m No. 2551/21 in S.C.Suit No. 1099/2020. 6 Order.
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
23/12/2022. 5.14 p.m. Miss M.A.Kulkarni.
Name of the Judge (with Court Room no.) HHJ Shri R.R.Bhagwat.
(Court Room No.66).
Date of Pronouncement of Judgment/Order 20/12/2022.
Judgment/Order signed by P.O. on 21/12/2022.
Judgment/Order uploaded on 23/12/2022.
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