Final Order 4

Order Details: Notice of Motion
Pdf Text: NM.No.2189/2019 : 1 : SU.No.3526/2010
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO. 2189 OF 2019
IN
SUIT NO. 3526 OF 2010
(HIGH COURT SUIT NO. 998 OF 2010)
CNR NO. MHCC010060782019
Arun Kumar .. Applicant.
In the matter between:
1. Gazebo Restaurant and Departmental … Plaintiffs
Store Private Ltd. and another.
V E R S U S
1. Aktar Quershi alias Aktar Kamlu Qureshi
and Another. .. Defendants.
Appearance:
Learned Advocate Mr. Shishir Joshi for Plaintiffs.
Learned Advocate Mr. Sathaye for Defendants.
CORAM : SMT. S.S. NAGUR,
JUDGE,
(C.R.NO.13)
DATE : 06/03/2020
ORAL ORDER
1. The notice of motion is filed by the plaintiff seeking following
reliefs such as :
a) To issue warrant of attachment and warrant
of arrest under Order XXXIX Rule 1, 2, 2(A) for
noncompliance of the order dated 12.07.2017,
passed in Appeal from Order No.466 of 2017
by Hon’ble Justice Shri G.S. Patel;
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b) To appoint a proper officer of this court,
or the learned Court Receiver, alongwith police
assistance if obstructed, to restrain the
defendants from entering upon the suit
premises as per sketch at ExhibitA to the plaint
marked a and b; and
c) Pending the hearing and final disposal of
the present notice of motion, this court may
kindly be pleased to appoint proper officer or
the learned Court Receiver to attach and seize
and take possession of all movable assets and
merchandise from the suit premises, which is as
per sketch at ExhibitA to the plaint marked as
A and B.
2. The notice of motion is supported by an affidavit of plaintiff
Arun Kumar. He on oath stated that the notice of motion is filed
for issuance of warrant of attachment and warrant of arrest under
Order XXXIX Rule 1, 2, 2(A) of C.P.C. for noncompliance of the
order dated 12.07.2017, passed in Appeal from Order No.466 of
2017 by the Hon’ble High Court.
3. The plaintiff stated that the suit is filed for declaration that
defendants are not entitled to enter in the suit premises; for a
permanent injunction restraining the defendants from disturbing
the plaintiff’s possession; and for damages and other consequential
reliefs. The suit was transferred to City Civil Court, Mumbai, on
increase in pecuniary jurisdiction from Hon’ble High Court. The
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order on preliminary issue was decided on 28.08.2015, whereby it
was held that the court has no jurisdiction. The plaintiff filed an
appeal against the above order before the Hon’ble High Court. The
Hon’ble High Court on 12.07.2017, passed Judgment in the appeal,
and the defendants were restrained from claiming through them or
any other persons on their behalf from entering the suit premises.
4. The plaintiff stated that he visited the suit premises on
19.07.2017, 21.07.2017, 27.07.2017 and 08.08.2017. He found
defendants No.1 and 2 along with other of their associates and
assignees in the suit premises. The plaintiff shows the order of
Hon’ble High Court dated 12.07.2017. The defendants have been
blatantly disobeying the order of the Hon’ble High Court. On the
contrary they have threatened the plaintiff with dire consequences
if he insisted on the same. The defendants did not file any proof of
the payment of Rs.25,000/ as directed in the order dated
12.07.2017. Hence, the notice of motion disobeying of the order in
Appeal dated 12.07.2017.
5. On behalf of the defendants, Aktar Qureshi has filed affidavit
in reply. The defendants stated that there is no breach of any order
passed in Appeal No.466 of 2017. The cost of Rs.25,000/ each was
awarded the same till today remained to be paid. They submitted
that unconditional apology for the said nonpayment and are ready
to pay the said amount of costs as to be directed by the Hon’ble
High Court.
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6. The defendants stated that after the order was passed, they
have not entered the premises to do their work from their stall.
They have never allowed any person to enter the suit premises on
their behalf which can be called as their associates. The plaintiff
has not brought on record any proof to show that they have
disobeyed the order by entering the suit premises to conduct the
business. The plaintiff has not stated who are or where the
defendant’s associates enter the suit premises on their behalf. The
notice of motion is filed with an attempt to do something indirectly
which cannot be done directly. The plaintiff desires to seize the
defendants assets in the suit premises. Thereby, plaintiff is
indirectly trying to take possession of the suit premises by taking
advantage of the interim order.
7. The defendants stated that they have examined four persons
as their witnesses during the stage of deciding the preliminary
issue. In their crossexamination they have accepted that there are
independent sellers who are doing their own business in Gazebo
Market. The plaintiff has preferred a Chamber Summons No.2034
of 2014, to add these persons as party to the present proceedings.
Those proposed defendants are not affected by any injunction
order. They are doing the independent business in Gazebo Market.
There is no breach of order at the instance of the defendants as
alleged by the plaintiff. Hence, prayed to dismiss the notice of
motion.
8. The plaintiff filed an affidavit in rejoinder of Arun Kumar and
has denied the contents of reply. The plaintiff has produced on
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record photographs of suit premises to show that these defendants
are not following the orders of the Hon’ble High Court.
9. Heard Advocate Mr. Shishir Joshi for the Plaintiffs and
Advocate Mr. Sathaye for the Defendants. Perused the contents of
the notice of motion and reply supported by affidavit. I have also
gone through the records of the proceeding.
10. The plaintiff has filed the suit against the defendant no. 1 &
2 for declaration and injunction. The declaration that the
defendants are not entitled to enter upon the suit premises/ or
remain in the suit premises and/or use the counters/ racks for
selling their goods and permanent injunction restraining them from
entering upon or remaining in the suit premises and / or use the
counters/ racks to sell their goods.
11. Originally, the suit was filed before the Hon’ble High Court in
its original jurisdiction. Due to increase in pecuniary jurisdiction of
the City Civil Court, the suit was transferred. During the pendancy
of the suit before the Hon’ble High Court, the Notice of Motion No.
1050 of 2010 was filed for interim relief. The Hon’ble High Court
by order dated 14.09.2010 has granted interim relied that, “There
will be an interim order in favour of the plaintiffs and against
the defendants restraining them or any person claiming through
them from entering upon the premises which are more
particularly described in prayer clauses of the plaint and
demarcated on the sketch at Exh.A thereto”.
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12. The preliminary issue was framed on 12.04.2013 as per the
direction in the above notice of motion. The preliminary issue was
decided by my predecessor. The suit was dismissed on the ground
that the Court has no jurisdiction to decide the suit. The plaintiff
filed Appeal from Order No. 466 of 2017 against the dismissal suit
on the ground of jurisdiction. The Hon’ble High Court on
12.07.2017 has allowed the appeal and continued the interim relief
granted in notice of motion no. 1050 of 2010. The relevant para of
the order is as under:
“25. In my view, the order under Appeal cannot be
sustained. The Appeal is allowed. The order is set aside.
In consequence, since the purpose of the appellate order
of 23rd February 2011 has been achieved, the question is
whether Dharmadhikari J’s order of 14th September 2010
should be restored as the final interim order in the Suit. I
say this only because the Appeal was allowed by consent
on the limited ground of Section 9A and nothing else.
There was no assessment on merits at all. In the view
that I have taken, that preliminary issue had to be
answered in favour of the Plaintiffs and not against the
Defendants.
26. Mr. Sathaye submits that now he must be at liberty
to argue the Motion again. I do not think this remotely
correct. The Defendants cannot constantly get second,
third and fourth bites at the cherry like this. The matter
was argued at the adinterim stage. It was then argued at
the interim stage before Dharmadhikari J. It was argued
in Appeal. It was argued under CPC Section 9A issue.
Now the Defendants have failed, they cannot be allowed
to argue that the Plaintiffs should have to reestablish a
prima facie case.
28. There will thus be an interim order in favour of the
Plaintiffs against the Defendants restraining them and
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any all persons claiming through them from entering the
premises described in the prayer clause (a) and
demarcated on the sketch at Exhibit ‘A’ to the plaint.”
13. On the basis of order passed in the above Notice of Motion
No. 1050 of 2010 and continuation of the said order in Appeal
from Order No. 466 of 2017, the plaintiff has filed present Notice
of Motion. The plaintiff stated that the defendant has disobeyed the
above order of injunction. The plaintiff Arun Kumar has stated in
affidavit in para no. 8 of the Notice of Motion as under:
“I say that on 19.07.2017, 21.07.2017, 27.07.2017
and on 08.08.2017 when I visited the suit premises
and found Defendants nos. 1 and 2 along with
other of their associates and assignees and upon
which I showed all of them the order dated
12.7.2017 to all the aforesaid persons. I say that
despite of my advocates letter at Exhibit “E” herein
and my personally asking also personally asking
for compliance of the order dated 12.7.2017 of
Hon’ble Bombay High Court as above stated,
despite that defendants here in have been blatantly
disobeying the others as aforesaid and further
threatened me with dire consequences if I insisted
on the same”.
14. On the other hand, the defendant in their reply has denied
that they have disobeyed the order in the Notice of Motion No.
1050 of 2010. It is the contention of the defendant that the plaintiff
has not brought on record any proof in that respect to show that
after order in Appeal from Order No. 466 of 2017, the defendants
have attempted to enter in the suit premises to conduct the
business. There is no proof of any sort produced by the plaintiff to
show that they have ever entered the premises post injunction
order against them in breach of that order. The mere statement
would not amount to credible evidence to suggest or give inclusive
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proof to show that there was any breach of injunction by the
respondents.
15. The plaintiffs in affidavitinrejoinder has denied the
contention and stated that in the videography/photography, a
person claiming to be Mr. Sagar Singh s/o. Gulab Singh is seen and
stated that he is appointed by the present defendants. The
photography which the plaintiff has relied on only shows the
newspaper with the person. There are in all 18 photos.
16. Advocate for the plaintiff has drawn my attention to the
pleadings in the plaint (para no. 4 to 7) to show that the premises
is in possession of the plaintiff. The contention of the plaintiffs is
that the Shop and Establishment License is in his name from the
front portion of the premises. The first plaintiff has rent receipt in
its name. On the back portion of the suit premises, the plaintiff no.
2 has taken the said premises on leave and license basis. The
plaintiffs have evolved a business system, where under salesmen
are appointed to sell ladies fashion wear and eatables. Each
salesmen is paid a commission on the quantum of turn over
achieved by the salesmen. The payment of commission is made at
the end of the day and on daily basis. The defendants are such two
salesmen appointed by the plaintiffs. There is no fix place allotted
to any of the salesmen and they keep on shifting from counter to
counter. The plaintiff orally told the defendant not to enter upon
the suit premises from 18.01.2010 due to their bad performance in
selling the goods.
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17. In para no. 9 & 10 of the plaint, the plaintiff stated that the
defendants after 18.01.2010 forcibly entered into the suit premises
and insisted on working as a salesmen of the plaintiffs.
18. There is an injunction order in Notice of Motion No. 1050 of
2010. The interim injunction was granted to the plaintiff thereby
these defendants were restrained or any person claiming through
them from entering upon the premises described in prayer clauses
of the plaint and demarcated on the sketch at Exh.A. The
description of the suit property is in para 3 i.e. plot no. 494
admeasuring 765 sq. yard situate at Bandra TPS Scheme No. III
Mumbai 400 050, bearing CTS No. F/366; annexed to the plaint
Exh.A is the sketch of the suit premises to show that it is in
possession of the plaintiff.
19. In the Notice of Motion, the plaintiff has stated that dates of
disobedience of the order as 19.07.2017, 21.07.2017, 27.07.2017
and 08.08.2017. In the rejoinder affidavit, the plaintiff has
videograph footage of the suit property on 22.11.2019.The
photographs are shown to be of the same date, on the basis of the
newspaper Times of India dated 27.11.2019. In none of the
photographs nor in the affidavit there is contention that any of the
defendant no. 1 and 2 are present in the said photography and are
carrying on the business.
20. The above dates of disobedience is to be proved by the
plaintiff. Order 39 Rule 2A of the Civil Procedure Code, 1908 is a
causee criminal in nature and hence the person violating the
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injunction order passed by the Civil Court is liable to be detained in
civil prison. The violation or disobedience regarding the injunction
order has to be proved beyond all reasonable doubt by the person
violating the injunction order or disregarding the same is liable to
be detained in Civil Prison. The standard of proof required in such
cases would be as is required in criminal cases, since the said Act of
the violator itself entails his detention in Civil Prison.
21. The advocate for the defendant has relied on authorities
reported in :
i) Sudha Devi
Vs.
M.P. Narayanan & Ors.
(MANU/SC/0459/1988).
The authority is on the point of exparte decree on the basis
of evidence of plaintiff. The facts are different. Hence, the
ratio that even in absence of a defence the Court cannot
pass an exparte decree without reliable relevant evidence is
not applicable to the present facts.
ii) Nagin Mansukhlal Dagli
Vs.
Haribhai Manibhai Patel
(MANU/MH/0179/1980)
The ratio in the facts of the case is jurisdiction in respect of
dispute between landlord and tenant. Present facts is of
disobedience of the adinterim / interim order.
iii) Krishna Ram Mahale (Dead), by his Lrs.
Vs.
Mrs. Shobha Venkat Rao
[1989 AIR (SC) 2097]
that a person in settled possession of property even on
assumption that he had no right to remain in property cannot be
dispossessed by owner of the property except by recourse of law.
The ratio of the authority can be considered at the final
Judgment. The notice of motion is to take action for disobedience
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of the interim order.
22. The advocate for the Plaintiff has relied on authorities
reported in :
i) Mrs. Jayashri N. Rahebhosle
@ Bimabai Rauji Rane Sardessai
Vs.
Vijay Raghoba Gaonkar & Ors.
[2016(5) ALL MR 157]
The dispute in the facts of the case is construction of
house. The suit was filed restraining the first respondent
from effecting the construction and a direction to second
and third respondents to take action against first
respondent. The order was passed by which the parties
were directed to maintain statusquo. The application was
fined for breach of the order. The plaintiff report prima
facie shows that the construction is practically complete.
The Hon’ble High Court held that in such a situation the
application under Order 39 Rule 2(A) needs to be decided
a fresh after giving opportunity to parties.
ii) U.C. Surendranath
Vs.
Mambally’s Bakery
[AIR 2019 Supreme Court 3799]
the Hon’ble Apex Court held that for finding a person
guilty of willful disobedience of Order 39, Rule 2(A) of
CPC has to be not mere “disobedience” but it should be a
“willful disobedience”. The allegation of willful
disobedience being in the nature of criminal liability, the
same has to be proved to the satisfaction of the Court that
the disobedience was not mere disobedience but a willful
disobedience.
23. The evidence brought on record by the plaintiffs without its
strict proof cannot be relied. Though the plaintiffs are aware about
the disobedience stated in Notice of Motion, there is no document
on record to show that there is any complaint filed by the plaintiff
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against such disobedience. The Notice of Motion is filed by the
plaintiff on 07.06.2019. The incidents of disobedience is of the year
2017. The plaintiff has produced on record the pen drive i.e.
Videograph of the suit property to show that the defendants are
doing business by entering the suit. The plaintiff has to produce the
electronic record along with compliance under Section 65B of
Evidence Act, as the same is filed by the plaintiff to prove the
contents of that videography to show that there is disobedience of
the order. There is no Affidavit or Certificate as per Section 65B of
the Evidence Act filed on record nor the discription of the
videography in the pen drive filed by the plaintiff. Therefore, the
said pen drive to support the evidence to show the disobedience of
the order cannot be accepted. Advocate for plaintiff has relied on
the FIR No. 784 of 2019 filed on 14.12.2019 under Section 448,
143, 158, 427 of IPC. The complaint is filed by Rehan Ahmed
Shaikh against 10 persons. The defendants in the suit are Aktar
Qureshi and Imran Ramzan. There is no proof to show how the
incident complained is related to the defendants to prove the
disobedience. The notice of motion states the dates of the year
2017 only.
24. During the argument, advocate for plaintiffs stated that the
defendants have paid the amount of Rs. 25,000/ i.e. the cost to be
paid by the defendants as per the order passed in Appeal from
Order No. 466 of 2017. The defendants have filed on record the
pursis on 05.03.2020 (Exh.37) showing that the two cheques are
issued in the name of the defendants bearing no. 172587 and
172586 of Rs. 25,000/ each dated 06.11.2019 drawn on Bank of
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India, Khar Branch. The defendants have complied the part of the
cost to be paid to the plaintiff as per the order passed in Appeal
from Order No. 466 of 2017.
25. The plaintiffs have failed to prove that the defendant no. 1 &
2 after the injunction confirmed in Appeal from Order No. 466 of
2017 i.e. 12.07.2017, 19.07.2017, 21.07.2017, 27.07.2017 and
08.08.2017 has entered upon the suit property to do the business
and has violated the injunction order and has disobeyed the order.
Hence, the Notice of Motion is not tenable and pass the following
order :
ORDER
1. Notice of Motion is dismissed.
2. No order as to cost.
3. Accordingly Notice of Motion is disposed of.
(Smt. S.S. Nagur)
Judge
Gr. Mumbai.
Dictated on : 06/03/2020.
Transcribed on : 17/03/2020 & 15.06.2020
Sign on : 15.06.2020
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGEMENT/ORDER”
UPLOAD DATE TIME NAME OF STENOGRAPHER
01/07/2020 1.30 p.m. Prachi Y. Potdar (H.G.)
Name of the Judge HHJ Smt. S.S. Nagur
(C.R.NO. 13)
Date of Pronouncement of
Judgment/Order.
06/03/2020
Judgment/order signed by P.O on 15/06/2020
Judgment/order uploaded on 01/07/2020
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