Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM No.135818
CNR No. MHCC010043032018
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO.1358 OF 2018
IN
SUIT NO.4465 OF 2009
(HIGH COURT SUIT NO.2761 OF 2009)
Prabhakar Laxman Narvekar & Anr. ...Plaintiffs.
V/s.
Kalyani Shivanna Shetty & Ors. ...Defendants.
Appearances:
Ld. Adv P. R. Kadam for the plaintiff.
Ld. Adv. Sai Prasad Dudhane for defendant nos.1 to 7.
CORAM : HER HONOUR JUDGE
SMT. KALPANA S. HORE
COURT ROOM NO.14
DATED : 08th OCTOBER, 2018
ORDER
1. This is notice of motion taken by defendants for recasting issue
no.4. In support of affidavit, he contended that matter is part heard.
Plaintiff's witness is under cross examination. Pending the same, it has
been noticed that one of the issue came to be framed that defendant
nos.1 to 7 prove that predecessor in title of plaintiffs sublet the “suit
business” to Shivanna Lacchhu as subtenant. His contention is that the
said issue is required to be recasted :
Do the defendant nos.1 to 7 prove that predecessor in title of
plaintiffs sublet the suit premises to Shivanna Lacchhu Shetty
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as a sub tenant ?
The proposed issue is for proper adjudication and to avoid
multiplicity of proceedings.
2. The plaintiff no.2 and 1(b) by filing say objected the application
and contending that proposed issue cannot be even looked into because
the Small Causes Court at Bombay in RAD Suit No.1831 of 1984 and
L.E.& C Suit No.179/216/1988 has already dealt with the issue by a
common judgment. The common judgment is came to be confirmed by
the Hon'ble High Court therefore, there is no need to recast the issue.
Notice of Motion is taken to prolong the suit.
3. Defendant filed rejoinder.
4. I have heard Advocate for both the parties.
5. Plaintiff filed suit for possession and contending that plaintiff
predecessor was the tenant of the suit premises and one Shivanna
Lacchhu Shetty was conductor of the suit business in tenanted property
so, suit filed for possession.
6. In the written statement defendant contended that deceased
Shivanna Lacchhu Shetty was inducted as subtenant in the year 1958
and issue no.4 is framed as Do the defendant nos.1 to 7 prove that
predecessor in title of plaintiffs sublet the suit business to Shivanna
Lacchhu Shetty as a sub tenant ?
7. Advocate for defendant submitted that according to defendant
suit premises was sublet to Shivanna Lacchhu Shetty so, issue is to be
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recasted as Do the defendant nos.1 to 7 prove that predecessor in title
of plaintiffs sublet the suit premises to Shivanna Lacchhu Shetty as a
sub tenant ?
8. Crux of the matter is whether the suit premises in which business
is running by deceased Shivanna Lacchhu Shetty and his successor, is a
subtenant so, I find that issue no.4 is to be recasted as Do the
defendant nos. 1 to 7 prove that predecessor in title of plaintiffs sublet
the suit premises to Shivanna Lacchhu Shetty as a subtenant therefore, I
find that issue no.4 in place of issue is to be recasted as above. Hence,
notice of motion is allowed. In place of issue no.4 following issue :
“Do the defendant nos.1 to 4 prove that predecessor in title of
plaintiffs sublet the suit premises to Shivanna Lacchhu Shetty
as a subtenant ?
be replaced. Accordingly, I proceed to pass the following order :
O R D E R
1. Notice of Motion No.1358 of 2018 is allowed.
2. In place of issue no.4 replace issue no.4 as follows:
Do the defendant nos.1 to 4 prove that predecessor in title of
plaintiffs sublet the suit premises to Shivanna Lacchhu Shetty
as a subtenant ?
3. Notice of Motion No.1358 of 2018 stands disposed of accordingly.
( KALPANA S. HORE )
Judge,
Dated : 08/10/2018 City Civil Court, Gr. MUMBAI
Dictated on : 08/10/2018
Transcribed on : 08/10/2018
Signed on : 08/10/2018
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE
ORIGINAL SIGNED JUDGMENT/ORDER.”
Upload Date Upload Time Name of Stenographer
09.10.2018 4.50 p.m. ARUN ANNAMALAI MUDALIYAR
Name of the Judge (With Court
Room No.)
HHJ Smt. K. S. HORE (CR 14)
Date of Pronouncement of
JUDGEMENT /ORDER
08.10.2018
JUDGEMENT /ORDER signed by
P.O. on
08.10.2018
JUDGEMENT /ORDER uploaded
on
09.10.2018
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