Order 3

Order Details: Notice of Motion
Pdf Text: N/m No. 2552/21 in S.C.Suit No. 1099/2020. 1 Order.
MHCC010084182021
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. 2552 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
for making compliant in writing under section 340 r/w. 195 of the Code
of Criminal Procedure, 1973 to the Magistrate of the first class having
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jurisdiction, against the plaintiff in counterclaim (Exh.6) in Suit
No.1099/2020 and to dismiss Suit No.1099/2020. (Parties are
referred with their nomenclatures in the suit only.)
2. Perused notice of motion and affidavit in reply. I have also
gone through the suit proceedings and written notes of arguments filed
by both sides. Heard learned counsel Sandeep Jalan for the defendants
and learned counsel Rajeev Matkar for the plaintiff.
3. Case of the plaintiff, in brief, is as under :
The defendants have relied upon Para 3 in the plaint in
which it is pleaded that since the year 196768, plaintiff's husband Vijay
Kumar was running business of Vijay Stores in the suit premises. The
defendants further reproduced portions in Para 6 and 9 of the plaint
about running of the business from the suit premises and it was in
operation in August, September and October2020. The allegations of
flicking of various documents and money are made in Para 9 of the
plaint. According to the defendants, the plaintiff admitted in Para 8 of
her affidavit in rejoinder dtd. 24.08.2020 in Notice of Motion No. 1415
of 2020 that solitary payment claimed by defendant No.1 was paid by
him under threat of police as it was her money flicked from the suit
shop pointing out in para 9 of the plaint. It is the case of the defendants
that it is patent falsity in the contention of the plaintiff. The plaintiff
also relied upon details of salary payment made to the staff in the shop
during the April and May 2020. AffidavitCumDeclaration dtd.
21.12.1998 signed by the Vijaykumar is placed on record by the
defendants. The said AffidavitCumDeclaration is relied by the plaintiff,
but it is not annexed with the plaint. Plaintiff made false submission on
oath. With the help of this rival pleadings, the defendants prayed to
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allow the notice of motion.
4. In affidavit in reply, the plaintiff contented that the
defendants have designed to avoid fair trial in the suit. The defendants
cannot saddle the plaintiff with AffidavitCumDeclaration dtd.
21.12.1998 signed by Vijaykumar (husband of the plaintiff). She
asserted correctness of the contents in the plaint by stating that
defendant no.1 flicked documents and sold stock in the suit premises
and usurped the amount of Sale Proceeds. She prayed to dismiss the
notice of motion.
5. Learned counsel Shri Sandeep Jalan for the defendants and
Learned counsel Shri Rajeev Matkar for the plaintiff advanced
arguments as per contents in affidavit in support and affidavit in reply
respectively. Learned counsel Shri Rajeev Matkar for the plaintiff filed
written arguments and relied upon the observations of Hon'ble Supreme
Court in the case of Ashokkumar Aggarwal V/s. Union of India and
Ors., AIR 2014 SC 1020 (Para Nos 12 and 13) and submitted that to
initiate the prosecution for perjury, the court must prima facie reach to
a conclusion after holding primary inquiry that there has been a
deliberate and concise effort to misguide the court and interfere in the
administration of the justice.
REASONS
6. Considering the rival submissions and material on record,
matter is at initial stage. The plaint,written statement (Exh.5), counter
claim (Exh.6) and written statement to counter claim (Exh.7) are
available on record. Issues are not famed. Trial in the matter is not yet
commenced. Both the sides have not adduced evidence. Case of the
plaintiff is generally denied by the defendants. In the case in hand,
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defendants have made counter claim. It is obviously that the plaintiff
and the defendants are setting up their claims in the shop in the suit
premises by denying version of other side. In such circumstances, there
is no scope to conclude that the plaintiff is making false statements.
Version in the plaint and written statement (Exh.7) cannot be treated
as sufficient ground to attract the offence of perjury. With this regard
the observation of the Hon'ble Supreme Court in para 14 in the case of
N.S. Nandiesha Reddy V/s. Kavitha Mahesh (Civil Appeal No. 4821
Of 2012 decided on 03/08/2021 reads as under :
“14. It is apposite to refer to the decision of
this Court in the case of KTMS Mohammad and
Another vs. Union of India, 1992 3 SCC 178
wherein it is observed as hereunder:
'37. The mere fact that a deponent has
made contradictory statements at two different
stages in a judicial proceeding is not by itself
always sufficient to justify a prosecution for
perjury under Section 193 IPC but it must be
established that the deponent has intentionally
given a false statement in any stage of the
'judicial proceeding' or fabricated false evidence
for the purpose of being used in any stage of the
judicial proceeding. Further, such a prosecution
for perjury should be taken only if it is expedient
in the interest of justice.'
Further, in the case of Amarsang Nathaji
vs. Hardik Harshadbhai Patel & Ors., 2017 1
SCC 113 relied on by the learned counsel for the
appellant, this Court on referring to the case of
KTMS Mohammad vs. Union of India (supra)
has held as hereunder:
'6. The mere fact that a person has
made a contradictory statement in a judicial
proceeding is not by itself always sufficient to
justify a prosecution under Sections 199 and
200 of the Penal Code, 1860 (45 of 1860)
(hereinafter referred to as “IPC”); but it must be
shown that the defendant has intentionally
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given a false statement at any stage of the
judicial proceedings or fabricated false evidence
for the purpose of using the same at any stage of
the judicial proceedings. Even after the above
position has emerged also, still the court has to
form an opinion that it is expedient in the
interests of justice to initiate an inquiry into the
offences of false evidence and offences against
public justice and more specifically referred to in
Section 340 (1) CrPC, having regard to the
overall factual matrix as well as the probable
consequences of such a prosecution. The court
must be satisfied that such an inquiry is required
in the interests of justice and appropriate in the
facts of the case.'
7. In the light of above observations of Hon'ble Supreme
Court and factual aspect of the case in hand, there is no scope to take
action against the plaintiff on the basis of inconsistencies in stands and
alleged admissions in pleadings. Hence, I pass the following order :
ORDER
1. Notice of Motion No. 2552 of 2021 is dismissed.
2. Proceeding of Notice of Motion No. 2552 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
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
23/12/2022. 5.16 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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