Order 1

Order Details: Order below exhibit
Pdf Text: 1 OBE 9 in NM 1314/2020 in Suit 1107/2020
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
ORDER BELOW EXHIBIT 9
IN
NOTICE OF MOTION NO. 1314 OF 2020
IN
SUIT NO. 1107 OF 2020
Uttam Kantilal Pandhi …Plaintiff
Versus
Gautam Kantilal Pandhi & Ors. ...Defendants
Appearance:
Adv. S.Y. Thorat for plaintiff.
Adv. Rajesh Singh for Defendant No. 4.
CORAM : SMT. S.S. NAGUR
JUDGE, (C.R.NO.4)
DATE : 12/08/2021
ORDER
The application is filed by the plaintiff to pass no reply order to
the Notice of Motion and proceed exparte against defendant no. 4. The
plaintiff has also sought relief to direct the defendant no. 4 to furnish
copies of page no. 2 and 12 of the Written Statement.
2. The plaintiff stated that the defendant no. 4 did not provide the
copy of page no. 2 and 12 of the Written Statement. The defendant no.
4 did not file affidavitinreply to the Notice of Motion. Hence, prayed
to allow the application.
3. Advocate for defendant no. 4 filed reply to this application in the
application itself and has stated that the defendant no. 4 has served the
copy of Written Statement and denied the allegations in the application.
The application is not served to the defendant no. 4. The letters served
to the society was without annexure.
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4. Heard advocate Shri. S.Y. Thorat for plaintiff and Advocate Shri.
Rajesh Singh for defendant no. 4.
5. Advocate Shri. Thorat for plaintiff argued that as per the Bombay
Civil Civil & Sessions Court Rules, 1948, the pursis cannot be filed to
adopt Written Statement to file affidavitinreply to the Notice of
Motion. Advocate Shri. Thorat for plaintiff has drawn my attention to
Rule No. 44, 96, 188, 190 of the Bombay Civil Civil & Sessions Court
Rules, 1948. The reply to the Notice of Motion should be affirmed on
oath. Therefore, pursis cannot be considered as reply to the Notice of
Motion.
6. On the other hand, Advocate Shri. Singh for defendant no. 4 has
drawn my attention to the above rules along with Rule 43, 187 of the
Bombay Civil Civil & Sessions Court Rules, 1948. The application filed
by the plaintiff is not tenable. It should be in the form of Chamber
Summons/Notice of Motion. The rules relied by advocate for plaintiff
pertains to Chamber Summons and not Notice of Motion. In the Written
Statement of defendant no. 4, the verification is affirmed by the
defendant no. 4. Therefore, the objection of advocate for plaintiff is not
tenable. Hence, prayed to reject the application.
7. The Notice of Motion No. 1314 of 2020 is filed by the plaintiff
seeking an interim injunction pending disposal of the suit. In the
affidavitinsupport of Notice of Motion of Uttam Kantilal Pandhi, in
para 1 has adopted the contents and averments of plaint to be read as
part and parcel of the affidavit. The defendant no. 4 has filed the
Written Statement. The verification clause is affirmed by Matacharan
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Radheshyam Dube. In the verification clause he stated that, “do hereby
states and declare on solemn affirmation that whatever stated in
the aforesaid paragraphs are true and correct to the best of my
knowledge and belief and I believe the same to be true”. The
Written Statement is notarized.
8. Pursis is written statement/information given to the Court
pertaining to any matter pending before it which may include
information/facts/jointstatement/compromise/settlement/noinstruction
from a party etc with the intent to put the same before the Court for its
consideration in any proceeding. The contents of pursis filed by the
defendant no. 4 is as under :
“As in support of the relief sought by the Plaintiff in the Notice of
Motion, he has relied upon the pleading of the Plaint, to which this
Defendant has filed its Written Statement. Therefore, it is humbly
prayed that the said Written Statement of the Defendant No. 4 be
treated as Affidavit in Reply to the said Notice of Motion No. 1314
of 2020”.
9. The pursis was adopted by the defendant no. 4 on the same day
of the present application filed by plaintiff. On the basis of the above
pursis, the defendant no. 4 has adopted the contents of Written
Statement as reply to the Notice of Motion. On perusal of affidavit of
plaintiff in support of Notice of Motion, the plaintiff has adopted the
contents and averments of the plaint. The Written Statement of the
defendant no. 4 is on solemn affirmation. Therefore, it cannot be said
that the adoption pursis of defendant no. 4 cannot be accepted as reply
to the Notice of Motion. There will be nothing but repetition of contents
of Written Statement considering the fact that the plaintiff who has
adopted the contents and averments of the plaint to support his Notice
of Motion. Hence, the objection of the plaintiff to pass no reply order
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and proceed exparte is not tenable.
10. As per roznama dated 11.08.2021 the plaintiff has received
the copy of complete pages of Written Statement. Therefore, the relief
of direction is complied by defendant no. 4. In fact, the present
application should have been in the form of Chamber Summons seeking
relief of exparte/no reply proceeding of Notice of Motion against
defendant no. 4 as per the Bombay Civil Civil & Sessions Court Rules,
1948. Hence, pass the following order :
ORDER
1. Application Exhibit 9 is rejected.
2. No order as to cost.
3. Application Exhibit 9 is disposed of accordingly.
(SMT. S.S.NAGUR )
Judge
Dt.: 12/08/2021 City Civil Court,
Gr. Mumbai
Declared on : 12.08.2021
Dictated on : 12.08.2021
Typed on : 12.08.2021
Checked & Signed on : 12.08.2021
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE TIME NAME OF STENOGRAPHER
12/08/2021 5.30 p.m. Prachi Y. Potdar
Stenographer – Grade I
Name of the Judge HHJ Smt. S.S. Nagur
(C.R.NO.4)
Date of Pronouncement of
Judgment/Order.
12/08/2021
Judgment/order signed by P.O on 12/08/2021
Judgment/order uploaded on 12/08/2021
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