Final Order 1

Order Details: Notice of Motion
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IN THE COURT OF CITY CIVIL COURT AT GR.BOMBAY
NOTICE OF MOTION NO.1457 OF 2018
CNR NO.MHCCO10045892018
IN
S.C. SUIT NO.7808 OF 1985
Prasad Chamber Premises Cooperative
Society Limited, a Society registered
under the Maharashtra Cooperative
Societies Act, having its registered
office at 719, Prasad Chambers,
Swadeshi Mill Compound, Opera House,
Bombay 400 004. ..Plaintiff
Versus
1. Leo Monteiro,
of Bombay Indian Inhabitant
residing at 38, Swadeshi Mill
Compound, Opera House,
Bombay 400 004
2. Supariwala Estates,
a firm having its place of
business at 29, Erskine Road,
(Brig. Usman Road), Null Bazar
Bombay 400 003.
3. Shri H.D.Gandhi, of
Bombay Indian Inhabitant
residing at 10, Mangal Bldg.,
76, R.A.Kidwai Road, Matunga,
Bombay400 019.
4. Hansaben Harilal Gandhi of Bombay
Indian Inhabitant, residing at 78C,
R.A.Kidwai Road, Matunga,
Bombay400 019
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4(A). Mr. Pankaj Gandhi
of Bombay Indian Inhabitant, residing at 10,
Mangal Bldg., 76,R.A.Kidwai Road, Matunga,
Bombay400 019 ..Defendants
Ld. advocate Ms.Preeti Shah for the plaintiff.
Ld. advocate S.R.Waghmare for defendant no.2
Ld. advocate Shoaib Memon for defendant no.4(a)
CORAM: HIS HONOUR JUDGE SHRI M.SALMAN AZMI
DATE: 24/10/2019
ORAL ORDER
1. This notice of motion is filed by the plaintiff for
initiating appropriate proceedings as per section 340
of the Code of Criminal Procedure on the contention
that the statement made by witness and partner of
defendant no.2Ibrahim Supariwala during the cross
examination conducted by the plaintiff , to make
complaint regarding the said act of perjury and send
it to the Chief Metropolitan Magistrate, Gr. Mumbai
for taking action and to keep the suit premises under
the lock and key of this Court and restrain defendant
no.2 and 4A to use and occupy the same.
2. It is the contention of the plaintiff that on
05/03/2018, Mr.Ibrahim Supariwala(witness of
defendant no.2) deposed in cross examination that
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Mr.Pankaj Gandhi is using the suit premises for
diamond processing, came to the site and threatened
security guards of the plaintiff and broke upon the
lock and entered the suit premises. It is the
contention of the plaintiff that Mr.Ibrahim
Supariwala inducted third party at the suit premises
who are doing the business therefrom. The said
statement of Mr.Ibrahim Supariwala is not only in
defiance of order dated 20/07/1987 passed by
Hon'ble High Court but also it invites the action of
offence of perjury to be taken against him for
willfully, knowingly and deliberately making false
statement saying the suit premises is being used by
Pankaj Gandhi. Hence, prayed for allowing the
notice of motion.
3. Defendant no.2 filed reply and stated that no
resolution or extract of the managing committee has
been attached or enclosed which shows that
N.P.Sheth, treasurer is authorized to sign and act on
behalf of the plaintiff. He denied all the allegations
of the plaintiff. He submitted that on 04/03/2018,
N.P.Sheth along with goons tried to take forcible
possession of the suit premises by breaking open the
lock of defendant no.4a, put their own lock and
bogus seal on the suit premises. They informed the
neighbours that the said act being carried out under
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the instructions of the advocate for the plaintiff. The
police officer incharge wanted to arrest the said
N.P.Sheth for committing an act of criminal trespass
and also advocate for the plaintiff. Defendant no.4A
is in lawful possession of the suit premises. The
defendant no.2 has not breached any order.
Defendant no.2 prayed for dismissal of the notice of
motion.
4. At the outset for hearing the application u/s. 340 of
the Code of Criminal Procedure Code, the Court has
to consider the submissions of the applicant in the
said application. The contention of the plaintiff is
that on 05/03/2018 Mr.Ibrahim Supariwala on
behalf of defendant no.2 gave statement that
defendant no.4A is in possession of the suit premises.
On perusal of the record, it appears that there was no
such date i.e. 05/03/2018. The cross examination of
Mr.Ibrahim Supariwala is completed on 16/02/2018.
The allegation in the notice of motion is that
Mr.Ibrahim Supariwala in cross examination stated
that Mr.Pankaj Gandhi is using the suit premises for
diamond processing, came to the site and threatened
security guards of the plaintiff and broke upon the
lock and entered the suit premises, does not find
place in the cross examination. In the absence of any
material to that effect in the cross examination, the
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notice of motion on its face is not tenable. The
suggestion was given in the cross examination of
witness of defendant no.4A that someone of
defendant no.2 is occupying the suit premises but the
witness denied the said fact. The material as regard
threatening by Pankaj Gandhi to the security is not in
the cross examination of defendant no.2. The
allegations pointed out by the plaintiff is not in cross
examination of Mr.Ibrahim Supariwala, therefore
notice of motion is based upon surmises and is not
tenable. Hence it is expedient to pass following
order:
ORDER
1. Notice of Motion No. 1457/2018 is dismissed.
2. Costs in the cause.
3. Notice of Motion is disposed of accordingly.
24/10/2019 M.SALMAN AZMI
CITY CIVIL COURT,
GR.MUMBAI.
Dictated on : 24/10/2019
Transcribed on : 15/11/2019
Signed on : 18/01/2020
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'CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”.
24/01/2020 at 4.00 pm.
MRS.T.C.KAMBLE
Name of the Judge HHJ SHRI M.S.AZMI, CR NO.1
Date of Pronouncement of
judgment/order
24/10/2019
Judgment and order signed by P.O. 20/01/2020
Judgment/order uploaded on 24/01/2020
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