Date: 03-11-2020
Business: Matter pertains to C.R. No. 4
Adv. Jayant Gaikwad for defendant present.
L.O. at 1.30 pm.
Adv. Shraddha Khandhadia for plaintiff present and tendered registered NM no. 1583/20 with affidavit. TOR.
Adjd to 04.11.2020 for ad-interim hearing.
Next Purpose: HEARING
Next Hearing Date: 04-11-2020
Date: 04-11-2020
Business: Adv. Shraddha Khandhadia for plaintiff present and filed application for production of documents vide Exh. A i.e. whatsapp communication.
Defendant No. 1 and 2 are present in person.
Adv. Jayant Gaikwad for defendant No. 1 and 2 present and filed VP.
Heard Ld. cousnel for the plaintiff regarding urgent hearing in the matter. He submitted that on 02.11.2020 this matter was heard by Incharge Court Cr. No. 4 and kept for ad-interim order on 03.11.2020 however, the PO was on leave and the matter was taken on board by Incharge Court Cr. No. 2. She relied on the whatsapp messages and submitted that plaintiff apprehends dispossession at the hands of the defendants.
Ld. counsel for the defendants made a statement at the bar that on instruction he states that there is no dispute between the plaintiff and Deft. No. 1 and 2 and the Defendants do not want to dispossess the plaintiff or create third party interest in the suit property as apprehended by the plaintiff.
Since, deft. No. 1 and 2 are also present before the court and they consented to the statement made by their counsel on their behalf. The statement of the counsel for the Defendant No. 1 and 2 is recorded and both the parties are directed to maintain status quo regarding the suit property and not to take law in their hands, till the court is seized with the matter.
The oral request of the counsel for the defendants to grant time to file reply, is allowed.
Matter stands Adj for Reply to 12.11.2020.
Next Purpose: REPLY
Next Hearing Date: 12-11-2020
Date: 12-11-2020
Business: Adv. Shraddha Khandhadia for plaintiff present and seeks time to file rejoinder to affidavit in reply of defendant. Time granted.
Adv. Jayant Gaikwad for defendant no. 1 and 2 present and filed affidavit in reply to NM no. 1583/20 on behalf of defendant nos. 1 and 2. Copy served on other side.
Heard Ld. counsel for both the sides for sometime. However, it appears that the plaintiff wants to file rejoinder to the reply filed by the defendants today. Hence, time granted to the plaintiff to file the rejoinder, with a direction to serve the soft copy well in advance to the counsel for the defendant Nos. 1 and 2 before the next date.
Earlier order dated 04.11.2020 to continue till next date.
Matter stands Adj for filing rejoinder and hearing on NM to 17.12.2020
Next Purpose: REJOINDER
Next Hearing Date: 17-12-2020
Date: 17-12-2020
Business: Adv. Shraddha Khandhadia for plaintiff present and submitted rejoinder to the reply filed by the defendant informing the court that the copy of rejoinder has been served on the defendant on 14.12.2020.
Adv. Jayant Gaikwad for defendant present and filed his written statement and sur-rejoinder to the rejoinder filed by the plaintiff. TOR. Copy served on the other side.
Written statement filed on behalf of defendant. TOR.
Perusal of record shows that the defendant has appeared through counsel in the proceeding in the suit and Mr. Jayant Gaikwad has filed the VP on behalf of the defendant vide Ex-2 on record.
Ld. counsel for plaintiff submitted that she has already served the writ of summons on the defendant and the defendant is represented by Adv. Gaikwad before the court. Hence, he submitted that filing of affidavit of service may kindly be waived. She also tendered original writ of summons on the record of the court.
In view of the above, filing of affidavit of service by the plaintiff is waived.
Earlier order dated 04.11.2020 to continue till next date.
Matter stands Adj for hearing on NM no. 1583/20 to 21.01.2021.
Next Purpose: NM FOR HEARING
Next Hearing Date: 21-01-2021
Date: 21-01-2021
Business: Advocate Ms. Shraddha Khandhadia for plaintiff present and tendered draft notice of motion along with affidavit in support and additional affidavit T.O.R. Leave is granted to register Notice of Motion.
None for defendant.
KB at 2.00pm
LO at 2.10pm,
Plaintiff present.
Advocate Ms. Shraddha Khandhadia a/w advocate Sahu for plaintiff present.
Advocate Jayant Gaikwad for defendant present.
Defendant no.2 present.
Heard advocate for Plaintiff and defendants.
Advocate for Plaintiff sought ad-interim relief in terms of prayer clause (c) of draft NM. He submitted that the wife and son of defendant no.2 are obstructing the plaintiff\\\''s usage of the suit premises and so ad-interim relief is necessary.
Advocate for defendant submitted that defendants have already undertaken not to disturb the possession of the Plaintiff which is recorded in roznama dated 4.11.2020. He submitted that defendants stand by said statement and they have not disturbed plaintiff\\\''s possession or have obstructed the usage. According to him the Plaintiff himself has breached the order of the status quo passed on 04.11.2020.
Advocate for Plaintiff submitted that defendant no.2 and his family has removed plaintiff\\\''s articles from the room in his possession and are obstructing him from using the lavatory. Considering submissions and the order dated 4.11.2020 I do not find it proper to grant ad-interim relief as sought. This is on two counts. First that if the order of status quo is breached by defendant no.2 and/or his family members through him, the remedy is otherwise. If the Plaintiff claims that family members of defendant no.2 have breached the order on their own and so ad-interim injunction is necessary, it cannot be granted as the members of family of defendant no.2 are not party to the suit.
Advocate for defendants, on instructions of defendant no.2 who is present in Court hall, submits that neither defendant no.2 nor his family members have disturbed nor will disturb plaintiffs peaceful usage of the suit premises and the amenities therein. The statement is considered as an undertaking by defendant no.2 to the Court and is accepted.
The defendants and Plaintiff shall abide by order dated 04.11.2020.
Earlier order is to be continued till next date.
The case is adjourned to 25.02.2021 for NM reply.
Next Purpose: NM REPLYREJOINDER
Next Hearing Date: 25-02-2021
Date: 25-02-2021
Business: Advocate Ms. Shraddha Khandaria for plaintiff present.
Advocate Jayant Gaikwad for defendants present and filed reply to NM no.1583/20. TOR.
Copy served on advocate for Plaintiff.
Earlier order is to be continued till next date.
The case is adjourned to 07.04.2021 for NM hearing.
Next Purpose: NM FOR HEARING
Next Hearing Date: 07-04-2021
Date: 07-04-2021
Business: Due to COVID-19 pandemic the board is discharged.
Reason For Adjournment: Adjourned due to Covid-19
Next Purpose: NM FOR HEARING
Next Hearing Date: 06-07-2021
Date: 06-07-2021
Business: Court is vacant
Next Purpose: NM FOR HEARING
Next Hearing Date: 25-08-2021
Date: 25-08-2021
Business: Matter called out at 03.13 p.m.
Adv. Shraddha Khandhadia for plaintiff present.
Adv. Jayant Gaikwad for defendant present.
Plaintiff tendered registered CHS. No. 839 of 2021. TOR.
Defendant filed reply. TOR. Copy served to the other side.
Plaintiff seeking time to file rejoinder. Time granted.
Earlier interim order to continue, if any till then.
Matter stands adjourned to 06.10.2021 for rejoinder.
Next Purpose: REJOINDER
Next Hearing Date: 06-10-2021
Date: 06-10-2021
Business: Matter mentioned at 2.50 p.m.
Adv. Shraddha Khandhadia for plaintiff present. She tendered rejoinder. TOR.
Copy supplied to other side.
Adv. Jayant Gaikwad for defendant present.
Earlier order if any, to continue.
By consent, matter stands adjourned to 09.12.2021 for NM hearing.
Next Purpose: NM FOR HEARING
Next Hearing Date: 09-12-2021
Date: 09-12-2021
Business: Matter called out at 3.22 p.m.
Adv. Narayan Sahu I/b Adv. Shraddha Khandhadia for plaintiff present. She tendered reg. No.2784/21. TOR.
Defendant in person present.
Interim order, if any to continue till then.
Matter stands adjourned to 28.01.2022 for NM hearing.
Next Purpose: NM FOR HEARING
Next Hearing Date: 28-01-2022
Date: 28-01-2022
Business: Matter called out at 3.05 p.m.
Adv. Shraddha Khandhadia for plaintiff present. She tendered rejoinder to NM No.2784/21. TOR.
He undertakes to supply copy to the defendants.
None present for defendant.
Earlier order if any, to continue.
Matter stands adjourned to 23.03.2022 for NM/CS hearing.
Next Purpose: NM FOR HEARING
Next Hearing Date: 23-03-2022
Date: 23-03-2022
Business: Matter called out at 3.07 p.m.
Adv. Pratik Shah h/f Shraddha Khandhadia for plaintiff present. He tendered affidavit of service in NM No.2784/2021. TOR.
Deft. No.1 and 2 in person present.
Both the defendants are ready to settle the dispute amicably. Hence, matter is referred judge mediator. Parties are directed to remain present at mediation without fail.
Earlier order if any, to continue.
Matter stands adjourned to 30.04.2022 for mediation report.
Next Purpose: MEDIATION REPORT
Next Hearing Date: 30-04-2022
Date: 30-04-2022
Business: Adv. Shraddha Khandhadia for plaintiff present.
Deft. no.1 and 2 in person present.
Mediation report received as failed. TOR. Exh.4.
Earlier order if any, to continue.
As court is busy in dictating judgment in 20 years old SU No.7753/00.
Matter stands adjourned to 15.07.2022 for NM hearing.
Next Purpose: NM FOR HEARING
Next Hearing Date: 15-07-2022
Date: 15-07-2022
Business: Adv. Shraddha Khandhadia for plaintiff present.
Defendant no.1 and 2 in person present.
Heard both the sides.
Plaintiff is seeking amendment by way of CS No.839/2021 and wants to add relief of partition and pleadings to that effect as per the schedule. The defendants have replied resisting the contention.
Today, the Defendants are present in person. They are having no objection for adding the relief of partition to the suit. They submitted that they also want partition of the suit property left by their parents. The trial is yet to be commenced, it is well settled that the court should be liberal in granting amendment when the trial is not commenced. The addition of relief will help to resolve the dispute between the brothers permanently. Hence, CS deserves to be allowed.
Consequently, I pass the following order.
CS No.839/2021 is allowed.
Plaintiff to carry out amendment within stipulated period.
The defendants are allowed to file consequential WS.
Costs in cause.
CS No.839/2021 is disposed of accordingly.
Considering the submissions of defendants there are elements of compromise. The counsel of plaintiff is directed to keep remain the plaintiff present on next date.
Earlier order if any, to continue.
Matter stands adjourned to 16.09.2022 for compliance.
Next Purpose: COMPLIANCE
Next Hearing Date: 16-09-2022
Date: 16-09-2022
Business: Plaintiff and his Adv. Shraddha Khandhadia present.
He do not want to remain present at second session.
K.B.
Later on called out at 3.25 p.m.
Adv. Shraddha Khandhadia for plaintiff present. She tendered affidavit of service. TOR. Exh.04.
Deft. no. 1 and 2 in person present.
It appears that there is an advocate representing the defendants but now they say that they are unable to pay advocate fee, so they want to proceed with the suit in person. They both submitted that they are ready to give 1/3rd share to the plaintiff.
Plaintiff to take appropriate steps.
Earlier order if any, to continue.
Matter stands adjourned to 25.11.2022 for consequential WS of
defendants.
Next Purpose: WRITTEN STATEMENT
Next Hearing Date: 25-11-2022
Date: 25-11-2022
Business: Adv. Shraddha Khandhadia for plaintiff present.
Deft. no.1 and 2 present. They tendered affidavit cum WS. It appears that it is mentioned as affidavit but it admits the claim of plaintiff. It is in the form of WS with verification sworn in before notary. Hence, it is taken on record as WS of defendant after amendment and it is exhibited. Exh.05.
They also tendered application for production of document. TOR. Exh.06.
Copy served to the plaintiff.
Earlier order if any, to continue.
Matter stands adjourned to 25.01.2023 for NM hearing.
Next Purpose: NM FOR HEARING
Next Hearing Date: 25-01-2023
Date: 25-01-2023
Business: Adv. Narayan Sahu a/w Adv. Shraddha Khandhdia for plaintiff present.
Defendant Nos. 1 and 2 in person present.
Heard the advocate of plaintiff and defendants in person.
K.B.
Heard the advocate of plaintiff and defendant Nos.1 and 2 in person on the point of passing decree as per the provisions of Order 12 Rule 6 of CPC.
During the course of argument, the advocate of plaintiff is insisting for passing order on this motion alongwith judgment of this suit. The plaintiff has filed NM No.212/2021 claiming that the defendants have committed breach of injunction order and prayed that they should be dealt with as per the provisions of Order 39 Rule 2A of CPC. However, I am of the view that the proceeding under Order 39 Rule 2A of CPC is a separate proceeding required to be tried separately by framing appropriate points. It is an independent proceeding of criminal nature. The principle of deciding the suit is based on pleadings of the parties and decision on the issues arose out of the pleadings which is totally different proceeding from the application under Order 39 Rule 2A of CPC. Therefore, it should not be decided alongwith the suit.
I am fortified by the judgment of the Hon\''ble Bombay High Court in the case of Rampyaribai Wd/O Sukhdeo Daga V/s Niladevi Wd/O Narayandas reported in 2007 (4) Mh.LJ 213 where the Hon\''ble High Court has directed that the proceeding under Order 39 Rule 2A of CPC has to be registered as separate proceeding as miscellaneous judicial case. Thus, as per the provision of Para No.337 of Civil Manual, the motion is required to be registered as miscellaneous proceeding.
The proceeding of the motion, under Rule 187 of Bombay City Civil and Sessions Court Rules, are mainly provided for seeking interim injunction in the pending suit which is totally different from the proceeding initiated under Order 39 Rule 2A of CPC. Therefore, this motion deserves to be disposed off as not maintainable, however, plaintiff is at liberty to initiate appropriate proceeding. Hence, NM No.212/2021 stands disposed off accordingly.
Judgment. Exh.07.
Operative part. Exh.07-A.
O P E R A T I V E P A R T O F T H E J U D G M E N T
1. S. C. Suit No.1278/2020, is hereby partly decreed.
2. It is declared that the plaintiff is entitled for 1/3rd share in the suit property.
3. The defendants do deliver 1/3rd share of the plaintiff in the suit property.
4. The defendants are hereby permanently restrained from creating third party interest in the suit property to the extent of 1/3rd share of the plaintiff.
5. The plaintiff is directed to initiate final decree proceeding as required by law, forthwith.
6. The Notice of Motion No.2784/2021 and 1583/2020 are hereby disposed off in terms of final order.
7. Preliminary decree to be drawn up accordingly.
Nature Of Disposal: OTHERWISE
Disposal Date: 25-01-2023