Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 N/M 1633/19 (Suit 2955/12)
IN THE BOMBAY CITY CIVIL COURT, AT MUMBAI
NOTICE OF MOTION NO.1633/2019
IN
L.C. SUIT NO. 2955/2012
Faiyazabdul Latif Kudaiye & Anr. ..Plaintiffs
V/s.
Ishtiyaq Ahmed Shah and 10 Ors. ..Defendants
Appearance:
Adv. Mr. Patrawala for plaintiffs.
Adv. Mr. Kanishk Jayant for defendants no.1 to 7.
CORAM : HHJ Shri V.V Vidwans
C. R. No.03.
DATE : 7.8.2019.
ORAL ORDER
1. This Notice of Motion (N/M) is taken out by defendants
no.1 to 7 seeking various reliefs as per prayer clauses (a) to (g). The
N/M is supported by an affidavit of defendant no.1 Ishtiyaq Shah and
documents vide AnnexuresA and B respectively. The plaintiffs have
opposed the N/M by submitting affidavit in reply on record filed by the
plaintiff no.1 Faiyazabdul Kudaiye. Seen and considered the same.
2. I have heard oral submissions of Ld. Adv. Mr. Jayant for
defendants no.1 to 7 and Ld. Adv. Mr. Patrawala for the plaintiff.
3. Ld. Advocate for defendants no.1 to 7 has filed on record
copies of relevant orders passed by Ld. Metropolitan Magistrate, 51st
Court, Kurla, Mumbai; Addl. Sessions Judge, C.R No.42, City Civil &
Sessions Court, Mumbai; order passed by Addl. Sessions Judge, C.R.
No.13, City Civil Court, Mumbai in S.C No.311/09 and Contempt N/M
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No. 2229/11 dated 3.10.2011 and order passed by Hon'ble Bombay
High Court in Civil Appln. No.484/2012 in N/M No.1748/2011 arising
from Suit No. 311/2009 dated 13.8.2012, for ready reference of this
Court.
4. Perusal of record as well as prayer clauses in the N/M
shows that, as per prayer clause (a), defendants no.1 to 7 are seeking
stay of order dated 29.1.2019 passed by this Court in N/M
No.805/2012 till final hearing and decision in Appeal from Order
(Stamp) No.5386/2019 and Civil Applications No.5387 and 5388
respectively. As per prayer clause (b), defendants no.1 to 7 are seeking
to appoint defendant no.1 to 7, as per order dated 18.12.2014, as
licensee in the suit premises as they are ready and willing to deposit
highest amount of license fees as directed by the court. As per prayer
clause(c), defendants no.1 to 7 are seeking stay of order dated
29.1.2019 passed by this Court in N/M No.3996/2015. They are also
seeking setting aside of the no WS order and prayed for allowing
defendants no.1 to 7 to file WS. In the supporting affidavit, the
defendant no.1 has tried to support the contentions made on behalf of
the defendants.
5. On the other hand, the plaintiffs in their affidavit in reply
have opposed the N/M and submitted that, they have filed the reply
only in respect of prayer clause (d) of N/M. It is submitted that, the
present suit is filed in the year 2012 and as per order dated 15.4.2015,
this order had passed an order to proceed without WS. The defendants
no.1 to 7 have deliberately delayed the proceeding in the suit and not
filed the WS. Now, when the matter is at the stage of framing of issues,
present application is made only to delay further proceeding before the
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Court. No grounds have been stated in the supporting affidavit along
with N/M to justify the delay in filing the WS. In fact, the defendants
no.1 to 7 have not disclosed that, the order to proceed without WS was
passed by this court on 15.4.2015. On the other hand, it has been made
to appear that the said order was passed on 29.1.2019. Thus, even if
there has been delay in taking out the Motion for setting aside the said
order dated 15.4.2015 and permitting the defendants no.1 to 7 to file
their WS. Under the above circumstances, it was submitted that, the
defendants no.1 to 7 are suppressing material facts before the court and
N/M is liable to be dismissed.
6. I have gone through the chronology of the events and
various orders passed by this court as well as Ld. Metropolitan
Magistrate, 51st Court,Kurla, Addl. Sessions Judge C R 42 and Hon'ble
Bombay High Court.
7. It is clear from the order passed by my Ld. Predecessor on
29.1.2019 that the only prayer clause(a) of the N/M No. 3996/15 was
made absolute and court receiver was appointed. On the same date, the
defendants no.1 to 7 had prayed for stay of the order with an intention
to challenge the same before Hon'ble High Court. However, My Ld.
Predecessor had declined to stay the order on the ground that the
original order dated 18.12.2014 passed by this Court appointing the
court receiver was not challenged by the defendants no.1 to 7 till that
day. Thereafter, again on 5.3.2019, Ld. Counsel for the defendants no.1
to 7 had moved the draft N/M for stay of the order passed in the N/M
805/2012 and order dated 29.1.2019 passed in N/M 3996/15. It can be
seen that the defendants had already preferred an A.O. Stamp No.
5386/19 against order dated 18.12.2014. However, Hon'ble High Court
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had refused to grant adinterim relief vide order dated 20.2.2019.
Under the above circumstances, my Ld. Predecessor had declined same
request again, therefore prayers clause (a) and (c) were held as not
maintainable. As regards prayers clause (b) and (e), Court Receiver had
not taken over the possession by then, therefore the court receiver was
directed to take further steps as per order of this court and leave was
granted to register the N/M to the extent of prayer clause (d) seeking
permission to file WS. On the same day, as per Exh.6, the Court
Receiver had submitted his site report which reflected that defendants
no.1 to 7 had locked the suit premises and therefore, he could not take
possession as per direction of this court. The Court had passed an order
dated 18.12.2014 directing the court receiver to remove defendants
no.1 to 7 from the suit property and take over its management.
Thereafter, on 29.1.2019, this Court had directed the court receiver to
implement the order dated 18.12.2014 with assistance of local police
and remove the defendants no.1 to 7 from the suit flat. It is also
observed by my Ld. Predecessor that the defendants have deliberately
locked the premises and left. Hence, the court receiver was directed to
break open the lock and take possession of suit premises and prepare
inventory of the articles lying in the suit flat.
8. Considering the above facts and circumstances and history
of the case, I am of the considered view that, the prayers clause (a)(b)
and (c) in the present N/M are not maintainable. So far as prayer clause
(d) is concerned, it is in respect of setting aside order dated 29.1.2019
and to allow the defendants no.1 to 7 to file their WS. However, from
the order sheet of the case it is clear that, the order to proceed without
WS of the defendants is not dated 29.1.2019, but it is dated 15.4.2015.
Therefore, with respect to prayer clause (d) in the present N/M,
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necessary grounds or reasons for delay in filing the WS have not been
mentioned in the supporting affidavit by defendants no.1 to 7. Under
the above circumstances, I come to the conclusion that the N/M as
framed and filed is not maintainable in law. However, I consider it just
and proper to grant liberty to the defendants no.1 to 7 to file
appropriate Motion, if advised, regarding prayer clause (d). hence, I
proceed to pass following order:
ORDER
1. N/M No. 1633/2019 is hereby is hereby dismissed as
not maintainable in law.
2. However, defendants no. 1 to 7 are granted liberty
for taking appropriate steps for taking out necessary
Motion in respect of prayer clause (d), if advised,
regarding setting aside of “No WS” order and for
condonation of delay for submitting the WS.
N/M stands disposed of accordingly.
(V.V. Vidwans)
Judge, City Civil Court,
Date: 7.8.2019 Gr. Bombay (C.R. 03)
Dictated on : 7.8.2019
Typed on : 8.8.2019
Signed by HHJ on : 9.8.2019
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED JUDGMENT/ ORDER.
UPLOADED ON :9.8.19
TIME: 3.20 pm (NITIN V. UBALE)
SELECTION GR. STENOGRAPHER.
Name of the judge (with Court Room No.) Shri V.V. Vidwans, Judge, (C.R. 03)
Date of pronouncement of Judgment/ Order 7.8.19
Judgment/ order signed by P.O on 9.8.19
Judgment/ order uploaded on 9.8.19
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