Final Order 2

Order Details: Chamber summons
Pdf Text: MHCC010068872019
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
Chamber Summons No. 1230/2019.
(MHCC010068872019)
IN
SUIT NO. 996 OF 2019
Mrs. Kali Punja Godariya ] ...Applicants
Versus
Mr. Kesari Bomanshaw Noble And Ors. ]....Respondents
Appearance:
Ld Advocate Ravindra singh for the plaintiff.
Ld Advocate J. K. Master present for defendant 01 to 06.
CORAM : K.P. KSHIRSAGAR
JUDGE, (C.R.NO.08)
DATE : 14/10/2022
ORAL ORDER
Defendant no. 01 and 06 have taken out present chamber summons for
rejection of the plaint on the ground that plaint does not disclose the cause of action
or to dismiss notice of motion moved by plaintiff for the relief as same prayer was
finally heard and decided by the Small Cause Court or in the alternative present
suitbe stayed till disposal of former RAD suit no. 1722/2014.
Perused the chamber summons, affidavit in support of chamber summons,
affidavit in reply of plaintiff and record. Heard arguments advanced by ld. Advocate
for defendant no. 01 and 06 and ld. Advocate for plaintiff. Court has gone through
the synopsis of arguments submitted by ld. Advocate for defendant no. 01 and 06.
Ld. Advocate for defendant no. 01 and 06 argued that plaint ex facie does not
discloses cause of action and therefore plaint is liable to be rejected under order 7
Rule 11 (d) of Code of Civil Procedure. Moreover, plaintiff has filed RAD
-- 1 of 4 --
suit no. 1722/2014 prior to institution of the present suit for the identical relief. As
the RAD suit no. 1722/2014 is instituted prior to present suit, the proceeding of the
present suit needs to be stayed as per section 10 of Civil Procedure Code.
Moreover, plaintiffs application Exh. 26 in RAD suit no. 1722/2014 for grant of
temporary injunction restraining defendants from causing any obstruction from
getting necessary electricity connection in the suit premises was dismissed and
therefore, the notice of motion no. 1754/2019 taken out by plaintiff in the present
suit is liable to be dismissed.
On the other hand, ld. Advocate for plaintiff argued that the matter in involved
in RAD suit no. 1722/14 is different than the matter directly and substantially in
issue in the present suit. Plaint ex facie discloses cause of action for filling present
suit. The resjudicata principal is not applicable to the interlocutory orders.
Therefore, notice of motion be dismissed.
From the matter on record, it appears that, plaintiff has filed the present suit for
permanent injunction restraining the defendant no. 01 to 06 from causing any
obstruction to the defendant no. 07 in providing necessary electricity supply to the
suit premises. Admittedly, the plaintiff filed RAD suit no. 1722/2014 for declaration
of tenancy right in respect of suit premises. As such ex facie it is clear that the matter
involved in the present suit is not directly and substantially issue in previously
instituted suit between the same parties. Therefore, present matter does not come
within purview of Section 10 of Code Of Civil Procedure. It is settled proposition of
law that at the time of deciding, application under Order (7) Rule (11) of Code Of
Civil Procedure the averments in the plaint are German and defense of the
defendant is immaterial. The reading of the plaint as a whole, prima facie discloses
the cause of action for filling the present suit. As such there is no substance in the
contention of defendant no. 01 and 06 that plaint does not disclose cause of action.
Moreover, the order below exhibit 26 in RAD suit no. 1722/2014 is an interlocutory
order in. Therefore, ex facie there appear no substance in the contention of
defendant no. 01 and 06 that as the notice of motion taken out by plaintiff in the
present suit for some relief, which has been finally heard and decided by the Small
-- 2 of 4 --
Cause Court vide Order below exhibit 26 in RAD suit no. 1722/2014 it is not
maintainable and it is liable to be dismissed.
Considering the matter on record and above discussion, court held that present
chamber summons is devoid of merit. Moreover, plaintiff has not taken out a
appreciate notice of motion for claiming reliefs claimed in the present chamber
summons, as per the Bombay City Civil And Sessions Court Rules. Therefore, the
present chamber summons is liable to be dismissed. Hence, court proceeds to pass
the following order.
ORDER
1) Chamber Summons No. 1230/2019 is dismissed.
2) Chamber Summons No. 1230/2019 is disposed off accordingly.
Date : 14/10/2022 (Shri. K.P. Kshirsagar)
Judge
City Civil Court,
Gr. Mumbai.
Dictated & typed on : 14/10/2022.
Checked on : 15/10/2022.
Signed on : 15/10/2022.
-- 3 of 4 --
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
UPLOAD DATE AND TIME NAME OF TYPIST
30/11/2022 Shruti J. Aswar.
Name of the Judge (With Court room
no.)
SHRI K.P. Kshirsagar (Court Room
No.08)
Date of Pronouncement of
JUDGMENT/ORDER
14/10/2022
JUDGMENT/ORDER signed by P.O.
on
15/10/2022
JUDGMENT/ORDER uploaded on 30/11/2022
-- 4 of 4 --