Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 N/M NO.1418 of 2019
CNR:MHCC01-003755-2019
IN THE BOMBAY CITY CIVIL COURT FOR GREATER MUMBAI
NOTICE OF MOTION NO.1418 OF 2019
IN
SUIT NO.3058 OF 2014
Kanhaiyalal Jangbahadur Singh .. Plaintiff
V/s.
1. Pankaj Jethabhai Bhanushali & Ors. .. Defendants
Appearances :-
Adv. Ramesh Tiwari a/w Adv. Ashwin Singh for plaintiff.
Adv. Milan Desai i/b. Adv. Prakash Wagh for defendant Nos.1 & 2.
Coram : R. M. Sadrani
Judge, City Civil Court,
Greater Bombay, C.R. No.07.
DATED : 3rd March, 2021.
ORDER
1 This Notice of Motion is moved by the defendant
Nos.1 and 2 with the prayer to reject the plaint under Order VII
Rule 11(a) or (d) of Code of Civil Procedure(hereinafter referred
to as CPC).
2 Learned Adv. Milan Desai for the defendant Nos.1 and
2 argued that the facts of the case are that the plaintiff is real
brother of the deceased Jaikrishna Jangbahadur Singh who
expired on 30/08/2013 by executing will and bequeathed the
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property mentioned in the suit in favour of the defendant Nos.1
and 2. Thereafter, defendant No.1 and 2 filed Probate Petition
bearing No.1132 of 2014 before the Hon’ble High Court in which
plaintiff filed caveat and now the probate suit is pending before
the Hon’ble High Court. During the pendency of that suit, plaintiff
filed present suit with the prayer to declare that will
dt.30/08/2013 is illegal, bad-in-law and it be cancelled or
revoked. Further, prohibitory injunction against the defendant
No.3 from creating 3rd party interest, alienating, transferring the
suit property i.e. Flat No.1109, A Wing, Trinity Co-op. Hsg, Society
Ltd., Powai, more particularly, described in the plaint, also to
restrain him from releasing amount of monthly compensation and
security deposit in favour of the defendant Nos.1 and 2. He
argued that jurisdiction to decide the issue of will is exclusively
vested to Hon’ble High Court, therefore, this Court can not decide
issue of probate as prayed in the plaint and therefore, this Court
has no jurisdiction to declare the will as null and void within the
meaning of Rule 11(d) of Order VII of CPC. He further argued that
even as per Section 3(a) of Bombay City Civil and Sessions Court
Act 1948, City Civil Court has jurisdiction to try all the suits except
suit of testamentary nature which bars this Court from
entertaining such type of suit. Further as per Rule 727 of Chapter
1 of Bombay High Court(Original Side) Rules 1980, only High
Court is having jurisdiction to entertain the suits of testamentary.
Another prayer is of injunction which is consequential in nature.
Therefore, plaint is required to be rejected due to lack of
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jurisdiction. On this point, he placed his reliance on the judgment
delivered by Hon’ble Supreme Court in the mater of Chiranjilal
Shrilal Goenka V/s. Jasjit Singh and Ors. reported in 1993 SCC(2)
507.
3 He further argued that plaint does not disclose cause of
action in favour of plaintiff. In fact, plaintiff has not joined his
siblings to the suit. Plaintiff failed to show for what right he is
filing the present suit. If he is claiming as legal heirs of brother,
then without adding siblings, suit cannot be entertained. Plaintiff
failed to mention cause of action in the plaint, therefore, without
cause of action, suit is not maintainable within the meaning of
Order VII Rule 11(a) of CPC. He requested that plaint be rejected.
He placed his reliance on the judgments delivered by Hon’ble
Supreme Court in the matter of Popat and Kotecha Property V/s.
State Bank of India Staff, Appeal (Civil) No.3460 of 2000,
dt.29/08/2005 and Sopan Sukhdeo Sable & Ors V/s. Assistant
Charity Commissioner, Appeal(Civil) No.448 of 2004,
dt.23/01/2004.
4 Learned Adv. Ramesh Tiwari for the plaintiff opposed
the Notice of Motion. He argued that plaintiff is brother of
deceased, so he has a right to file the present suit being legal heir.
Plaintiff filed the Notice of Motion bearing No.592 of 2015 which
was allowed and Court Receiver is appointed. In fact, suit property
is under development. Defendant Nos.1 and 2 are having no
concern with the deceased. There is no relation of them with
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deceased at all. Defendant Nos.1 and 2 prepared false will in their
favour and claiming right over the suit property. Defendant No.3
is builder. Defendant No.1 and 2 are trying to dispossess the
plaintiff and accordingly, pleaded in paragraph No.17, 18 and 19
of the plaint, which shows cause of action to the plaint. There is
every possibility that defendant Nos.1 and 2 will create third party
interest if the defendant No.3 parted possession with the
defendant Nos.1 and 2 and thereby right of plaintiff may be
defeated. He placed his reliance in the order passed by our Hon’ble
High Court in Appeal No.797 of 2010 in Notice of Motion No.37 of
2009 in Petition No.158 of 2009 between Ramchandra Ganpatrao
Hande alias Handege V/s. Vithalrao Hande & Ors., dt.29th March
2011. He lastly requested to reject the Notice of Motion with
costs.
5 After hearing both the sides, I go through record and
cited judgments. Judgment relied by the learned advocate for the
defendant Nos.1 and 2 in the matter of Chiranjilal Shrilal Goenka
(supra) was also discussed in the judgment relied by learned
advocate for the plaintiff in the matter of Ramchandra Ganpatrao
Hande alias Handege(supra). Relevant portion is quoted as under.
“The Succession Act is a self-contained code insofar as
the question of making an application for probate,
grant or refusal of probate or an appeal carried against
the decision of the probate court. This is clearly
manifested in the fascicule of the provisions of the Act.
The probate proceedings shall be conducted by the
probate court in the manner prescribed in the Act and
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in no other ways. The grant of probate with a copy of
the will annexed establishes conclusively as to the
appointment of the executor and the valid execution of
the will. Thus it does no more than establish the
factum of the will and the legal character of the
executor. Probate court does not decide any question
of title or of the existence of the property itself.”
6 In view of guidelines that probate court does not
decide any question of title or of the existence of the property
which makes clear that it requires to be decided by the Civil Court.
Further, plaintiff is claiming relief against the defendants for
injunction. Defendant No.3 is not party before the Hon’ble High
Court in probate matter, therefore, in view of above guidelines, I
do not find any substance in the argument that this Court has not
jurisdiction and to reject the plaint. So far as question of non-
joinder of necessary party is concerned, that issue cannot be
considered under Order VII Rule 11 of CPC. Of course, this Court
cannot decide validity of the will as per prayer clause(a).
However, other rights of the plaintiff can be decided by the Civil
Court for which suit is maintainable.
7 So far as another issue raised in Notice of Motion
regarding cause of action is concerned, judgment in the matter of
Popat and Kotecha Property(supra) is merely cited on the point
that remedy under Order VII Rule 11 of CPC can be exercised at
any stage of the suit, even though some interim relief was granted
in favour of the plaintiff. This ratio is not disputed by the plaintiff.
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Further, in the matter of Sopan Sukhdeo Sable(supra), defendant
is relying on following paragraph.
“The word ‘material’ shows that the facts necessary to
formulate a complete cause of action must be stated.
Omission of a single material fact leads to an
incomplete cause of action and the statement of claim
becomes bad. The function of particulars is to present
as full a picture of the cause of action with such
further information in detail as to make the opposite
party understand the case he will have to meet.”
8 In view of above guidelines, I read paragraph Nos.17,
18 and 19 of the plaint which reveal that there is cause of action
on the part of the plaintiff to file present suit. Therefore, I do not
find any substance in the Notice of Motion. It deserves to be
rejected. Hence, I pass following order.
ORDER
1 Notice of Motion No.1418 of 2019 is hereby rejected
with costs.
2 Notice of Motion is disposed off accordingly.
(R. M. Sadrani)
Judge,
City Civil and Sessions Court,
Dated : 03/03/2021. Greater Bombay.
Dictated on :03/03/2021.
Transcribed on :03/03/2021.
Signed on :05/03/2021.
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.
UPLOADED ON: 05/03/2021.
(Santosh B. Sawant)
(Selection Grade Stenographer)
Name of the Judge(with Court Room
No.)
Shri. R. M. Sadrani, Judge, C.R.No.07.
Date of pronouncement of
Judgment /Order
03/03/2021.
Judgment/Order signed by P.O. on 05/03/2021.
Judgment/Order uploaded on 05/03/2021.
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