Final Order 2

Order Details: Notice of Motion
Pdf Text: 1 NM NO.16582018 IN SU 21792012
MHCC010032502012
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
CONTEMPT NOTICE OF MOTION NO.1658 OF 2012
IN
NOTICE OF MOTION NO.2629 OF 2012
IN
SUIT NO. 2179 OF 2012
Shridhar Atmaram Malgaonkar ] ...Plaintiff
Versus
Pooja Hemant Malgaonkar & 4
Ors. ]…Defendants.
Appearance:
Ld Advocate Mr. Redekar for the plaintiff.
Ld Advocate Mr. Ashwin Sawlani for defendant No.4.
CORAM : K.P. KSHIRSAGAR
JUDGE, (C.R.NO.08)
DATE : 17/09/2022
ORAL ORDER
1) Plaintiff has taken out this Notice of Motion for holding
defendants No.1, 4 and contemnors i.e. partner of defendant no.4
guilty of willfull disobedience of interim order dtd.19/10/13 passed by
this court in N.M. No. 2629 of 2012, (hereinafter above order is
referred as “the order”) by executing the agreement of permanent
alternate accommodation in lieu of old premises exclusively with
defendant no.1 and for punishing them under Order 39 rule 2A of
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Code of Civil Procedure and for striking of the defence of defendant
no.1 and 4.
2) Perused, the Notice of Motion, affidavit in support of
notice of motion and affidavit in reply of defendant no.4 and record.
It appears that inspite of opportunity defendant no.1 and contemnors
failed to file reply. Heard arguments advanced by Ld. Advocate for
the plaintiff and Ld. Advocate for the defendant no.4. As the
defendant no.1 was absent, she could not be heard.
3) Ld. Advocate for plaintiff argued that as per order in N.M.
No.2629 of 2012 dated 19.10.2013 i.e. the order defendant no.4 was
restrained from entering into agreement for permanent alternate
accommodation exclusively with defendant no.1 to 3 in lieu of old
premises Room No. C13 and defendant no.4 was directed to consider
the claim of plaintiff while entering into agreement for permanent
alternate accommodation along with defendant no.1 to 3. The order
is covered within ambit/scope of Order 39 rule 2A of Civil Code of
Procedure. Defendant no.1, 4 and contemnors were fully aware about
the order. In spite of same defendant no.4 and contemnors willfully
entered into agreement of permanent alternate accommodation with
defendant no.1 alone on 20.03.2018 without considering the claim of
plaintiff. Thereby defendant nos.1, 4 and contemnors have willfully
disobeyed the order and therefore they are liable to punished under
Order 39 Rule 2A and Order 39 Rule 11 of CPC. Therefore, Ld.
Advocate for plaintiff prayed that Notice of Motion be made absolute.
4) Ld. Advocate for defendant no.4 argued that defendant
no.4 was not aware about the order. Defendant no.4 executed
agreement for permanent alternate accommodation in favour of the
defendant no.1 as her name was reflected in certified list of
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tenants/occupants prepared by defendant no.5. As name of plaintiff is
not reflected in the certified list of tenants/occupants prepared by
MHADA, he is not entitled for any benefits of redevelopment, in lieu of
suit premises. Defendant no.4 was completely unaware about the
order as it was passed in absence of defendant no.4. Defendant no.4
became aware of the order after receipt of present Notice of Motion.
Therefore, defendant no.4 has not willfully disobeyed the order.
Ignorance of facts is excusable. Plaintiff failed to prove that defendant
no.4 and contemnors were aware about the order, and they willfully
disobeyed the order. Therefore, Ld. Advocate for the defendant no.4
submitted that Notice of Motion be dismissed.
5) Following points arise for determination and court has
recorded its decision thereon for the reasons stated there under:
Sr. No. Points Decision
(i) Whether the plaintiff proved that defendant
No.1, 4 and contemnor willfully
disobeyed/defied the order and thereby they
disobeyed the order of injunction or order under
Order 39 Rule 1 or 2 of Code of Civil Procedure?
No
(ii) Whether the plaintiff is entitled for the reliefs
prayed?
No
(iii) What Order? As per final
order.
REASONS
As to Point No.1:
6) It is settled law that proceeding for violation of injunction
order are punitive and requires stricter proof than civil action, though
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the standard of proof in criminal proceeding may not apply. However,
the clear proof of disobedience of injunction order or order under
Order 39 Rule 1 or 2 of CPC is required. Therefore, burden to prove
the fact that defendant No.1, 4 and contemnors willfully disobeyed
injunction order or order under Order 39 Rule 1 or 2 of the CPC, rest
upon the plaintiff.
7) From the matter on record it appears that plaintiff had
taken out Notice of Motion No.2629 of 2012 and as per the order said
Notice of Motion was partly allowed, and defendant no.4 was
restrained from entering into agreement for permanent alternate
accommodation exclusively with defendant No.1 to 3 in lieu of old
premises Room No.C13 and defendant no.4 was directed that in case
of redevelopment to consider the claim of plaintiff while entering into
agreement for permanent alternate accommodation along with
defendant no.1 to 3. From the order, it is clear that it is the order of
injunction and order under Order 39 Rule 1 or 2 of the Code of Civil
Procedure. However, from the order it is clear that by the said order
defendant no.1 was not restrained from entering into agreement for
permanent alternate accommodation. As such the order was not
against the defendant no.1 and therefore there is no question of
violation/disobedience of the order by the defendant no.1. The order
of injunction is against defendant no.4 only. As such there is no
substance in the contention of plaintiff that defendant no1 willfully
disobeyed the order.
8) In the present matter defendant no.4 in its reply of Notice
of Motion denied that it was not aware about the order and came with
specific defence that defendant no.4 was unaware about the order till
he received present Notice of Motion as said order was passed behind
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his back. Thus there are two contrary statements on oath. In view of
defence of the defendant no.4 burden was upon the plaintiff to prove
that defendant no.4 was aware about the order and he willfully defied
the order.
9) Notice of motion is the pleading of plaintiff. Pleading
itself is not proof of averments. Therefore, present notice of motion
itself is not sufficient to prove the willfull disobedience of the order.
Moreover, plaintiff did not adduce evidence for proving the fact that
defendant no.4 and contemnors had willfully disobeyed the order and
they were aware about the order and thereby they disobeyed the order
of injunction or order under Order 39 rule 1 and 2 of Code of Civil
Procedure. Therefore, plaintiff failed to prove above fact. Moreover,
from the matter on record it appears that defendant no.4 had not filed
reply in N.M. No.2629 of 2012 and he and his advocate were not
present on the date of order. It appears that defendant no.4 was
absent in the matter and defendant No.4 appeared in the matter after
receipt of notice of present notice of motion on 05.05.2018. As such
there is substance in the contention of the defendant no.4 that he was
not aware about the order. Documents, annexed with affidavit in
support of notice of motion itself do not prove by preponderance of
probabilities that defendant no.4 and contemnors were aware about
the order.
10) Considering the above matter on record and above
discussion and facts of the case court hold that plaintiff failed to prove
that defendant No.1, 4 and contemnors willfully disobeyed the order
or injunction order or under Order 39 Rule 1 and 2 of of CPC.
Therefore point No.1 is answered in negative.
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As to point No.2:
11) In view of negative decision as to point No.1 plaintiff
failed to prove that defendant No.1, 4 and contemnors willfully
disobeyed/ defied the order. As such there is no willful default in
compliance of the order. Therefore plaintiff is not entitled for the
reliefs as prayed. Hence, point no.2 is answered in negative.
As to point No.3:
12) In view of negative decision as to point Nos.1 and 2 and
considering the matter on record present Notice of Motion is liable to
be dismissed. Hence, court proceeds to pass the following order:
ORDER
1. Notice of motion No.1685 of 2018 is hereby dismissed.
2. Notice of Motion No.1685 of 2018 is disposed off accordingly.
Date: 17/09/2022
(Shri. K.P. Kshirsagar)
Judge
City Civil Court,
Gr. Mumbai.
Dictated on : 17/09/2022.
Typed on : 19/09/2022
Checked on :20/09/2022.
Signed on :21/09/2022.
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
23/09/2022 at 2.46 p.m. Mr. Ashok S. Patil
Name of the Judge (With Court room
no.)
SHRI K. P. Kshirsagar (Court Room
No.05)
Date of Pronouncement of
JUDGMENT/ORDER
17/09/2022
JUDGMENT/ORDER signed by P.O.
on
21/09/2022
JUDGMENT/ORDER uploaded on 23/09/2022
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