Final Order 1

Order Details: Notice of Motion
Pdf Text: Notice of Motion No. 2653 of 2019 1
MHCC010072732019
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
NOTICE OF MOTION NO. 2653 OF 2019
IN
S. C. SUIT NO. 4125 OF 2011
(High Court Suit No. 1962 of 2011)
Shailesh Gulab Advani and Ors. …. Applicants
(Orig. Defendant Nos 4 and 5)
IN THE MATTER OF
Shailesh Gulab Advani and others ….Plaintiffs
Versus
Tarminder Singh Khurana And others. ...Defendants
CORAM : HIS HONOUR AD-HOC JUDGE
& ASSISTANT SESSIONS JUDGE
SHRI A.K.KALE.
CITY CIVIL COURT, GR.BOMBAY
(C.R. NO.63).
DATE : 02/05/24
Ld. Advocate Smt. Nikita Pandey for the plaintiff.
Ld. Advocate Shri. Puraiya Ridhiwala for defendant nos.1, 4 and 5.
Ld. Advocate Smt. Dharini Nagda alongwith for defendant nos.2 and 3.
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Notice of Motion No. 2653 of 2019 2
ORDER
1. This is a notice of motion taken out by defendant nos. 4
and 5 praying that it be declared that the plaintiff nos.1 to 3 have no
locus standi to file the present suit and suit be dismissed.
2. It is submitted that the notice of motion is taken out for
dismissal of suit under section 151 of Order VII Rule 11 of CPC for
dismissal of suit. Plaintiff nos.1 to 3 filed notice of motion No.1070 of
2018 without making plaintiff no.4 as a party. The said affidavit in
support has been signed by the plaintiff no.2, who do not have any
authority either the plaintiff no.4 or from plaintiff no.1, CA of plaintiff
no.4. Plaintiff no.4 was proprietor of M/s. Estate Enterprises. It is
admitted that plaintiff no.4 through her constituted attorney plaintiff
no.1 executed deed of lease dtd.19-03-2005 in favour of defendant
no.1. The plaintiffs only grievance is that the date of said deed is not
19-03-2005 but it is 22-06-2005. The plaintiffs admit to have executed
deed of lease in favour of defendant no.1 and also admit to have put the
defendant no.1 in possession and occupation of suit flat pursuant to
said deed and have accepted rent thereof regularly from defendants.
Plaintiff no.1 is constituted attorney of plaintiff no.4. The plaint and
notice of motion has been signed by the plaintiff no.2, who has no right,
title or interest in the suit flat and also has no authority from either the
plaintiff no.1 or plaintiff no.4. Plaintiff nos.1 to 3 have no locus standi
and also plaint is silent, as to how they have been made parties.
Allowing this kind of proceeding to conclude through its natural course
when would greatly prejudice the defendants and great, harm and
injury will be caused to them, if third parties like plaintiff nos.1 to 3 are
allowed to proceed with the proceeding without any locus. It should be
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Notice of Motion No. 2653 of 2019 3
great abuse of process of law. The defendants are bonfide purchaser of
suit flat and original owner has accepted the monies from them and
now third party is calming right over the suit flat and embroiled the
applicants into this vexatious and contumacious proceeding. If,
defendant no.2 has any right over the suit flat, then he has to claim
alleged rights against the plaintiff no.4 and not against the defendants,
who have paid, money which has been accepted by the owner.
3. It is further submitted that the notice of motion taken out
because the plaintiff nos.1 to 3 filed Notice of Motion No.1070 of 2019,
wherein the plaintiff no.4 is not a party, who is the original owner of the
suit flat. The defendants have been saddled with this litigation and
facing mental and financial hardship. The plaintiffs ought to be
prevented for misusing the process of this Hon'ble court to harass
innocent citizens. They are bonofide purchasers and have paid
consideration. The relief sought in present notice of motion are just,
necessary and expedient in the interest of justice and equity to meet the
ends of the justice. If, reliefs are not granted they will have to suffer
grate injustice, prejudice, irreparable loss, which cannot be
compensated interns of money. On the contrary, plaintiffs are not going
to suffer any such injustice, prejudice or irreparable loss as they do not
have any right, title or interest in the suit flat. The balance of
convenience is also in favour of defendants. It is lastly prayed to dismiss
the suit with costs.
4. The plaintiffs contested the notice of motion by filing reply.
It is submitted that the matter as regards locus has been agreed by the
Hon'ble High Court in Appeal No.593 of 2017. The Hon'ble High Court
has issued notice in this matter and the point of locus has been looked
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Notice of Motion No. 2653 of 2019 4
into by the Hon'ble High Court, which has granted stay of creation of
third party rights. The entire transaction, when Notice of Motion
No.1075 of 2013 was dismissed by this court vide order dtd.11-05-2016
is now before the Hon'ble High Court and pleadings are complied. It is
purely subjudice before the Hon'ble High Court has considered the locus
and issued notice. Similar Notice of Motion No.3999 of 2017 has been
dismissed by the Ld. Predecessor of this court Smt. K.S. Hore madam.
While framing the issues all the points can be taken. The present notice
of motion is pre-mature and should be dismissed with costs.
5. Perused the application, reply, record and heard both the
sides. The plaintiffs and defendants also filed their respective written
notes of arguments .
6. It is seen that the suit is filed for the agreement of lease
dtd.22-06-2005 be regarded as cancelled and forged and agreement of
lease dtd.19-03-2005 is regarded as null and void. Further, for recovery
of possession and permanent injunction restraining defendants from
creating third party interest. The present notice of motion is filed on the
ground that the plaintiff no.4 was the owner, who sold the suit flat to
defendant no.1 and therefore, plaintiff nos.1 to 3 have no locus standi
to file the present suit. It is further made a ground that the defendants
purchased the suit flat bonofidly and by consideration. Application is
opposed on the ground that the Hon'ble High Court accepted locus of
plaintiffs and granted interim order. It is further objected that the issues
can be framed and the same can be decided during the trial.It is further
objected on the ground that the similar application was filed earlier and
was dismissed by the Ld. Predecessor of this court.
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Notice of Motion No. 2653 of 2019 5
7. It is seen from the reply that, the Hon'ble High Court on 22-
02-2017 passed an order restraining defendants from creating third
party interest in respect of suit property in Appeal Form No. 593 of
2016. As per the plaintiffs the said Appeal is still pending. It is further
seen from the order dtd. 02-05-2019 passed by my Ld. Predecessor in
Notice of Motion No. 3999 of 2017 that the notice of motion taken out
by the defendant no.2 for dismissal of the suit. The said notice of
motion has been rejected with the observation that, whether documents
are forged or not is to be decided at the time of final hearing. The Ld.
Counsel for the defendants in support of his submissions relied upon the
case laws of the Hon'ble Supreme Court in Ramisetty Venkatanna and
another V/s. Nasyam Jamal Saheb and others, 2023 SCC OnLine SC 521
and C.S. Ramaswamy V/s. V.K. Senthil and others, 2022 SCC OnLine SC
1330.
8. The Hon'ble Supreme Court referred case law Ramsingh
V/s. Gram panchayat Mehal Kalan, and reproduced the following
observations as follows:
“ In the case of Ram Singh V/s. Gram Panchayat Mehal
kalan, (1996) 4 SCC 364, this court observed and held that when
the suit is barred by any law, the plaintiff cannot be allowed to
circumvent that provision by means of clever drafting so as to
avoid mention of those circumstances, by which the suit is barred
by law of limitation. Similar view has been expressed by this
court in the case of Raj Narain Sarin (supra)” .
9. The defendant is further relied upon case law of C.S. Ramaswamy
v/s. V.K. Senthil and others, 2022 SCC OnLine SC 1330 it is held that,
“31.Even the averments and allegations in the plaint with respect
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Notice of Motion No. 2653 of 2019 6
of fraud are not supported by any further averments and
allegations how the fraud has been committed/played. Mere
stating in the plaint that a fraud has been played is not enough
and the allegations of fraud must be specifically averred in the
plaint, otherwise merely by using the word “ fraud” , the plaintiffs
would try to get the suits within the limitation, which otherwise
may be barred by limitation”.
10. The cited case laws, with due respects, are not applicable to
facts of case in hand. In the present notice of motion the defendants and
seeking dismissal of suit on the ground of locus standi of plaintiffs to
file the suit and not on the ground that limitations. Whatever
contention in plaint are the mix question of facts and law and those
necessary to be decided in the trial. Therefore, by this pre mature stage
it cannot be said that the plaintiffs have no locus standi, to file suit, as
such , notice of motion deserves to be dismissed. Hence, I proceed to
pass following order:
-ORDER-
Notice of Motion no.2653 of 2019 stands dismissed and disposed
off, accordingly.
(A.K.Kale)
Ad-Hoc Judge
& Assistant Sessions Judge
City Civil Court,
Date :02-05-2024 Gr. Bombay.
Dictated on : 02-05-2024.
Typed on : 03-05-2024
Signed on : 17-05-2024
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Notice of Motion No. 2653 of 2019 7
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
17-05-2024 4.00 p.m. K.M.Rana
Name of the Judge (with Court Room
no.63)
HHJ Shri A.K.Kale
(Court Room No.63).
Date of Pronouncement of Judgment/Order 02-05-2024.
Judgment/Order signed by P.O. on 17-05-2024
Judgment/Order uploaded on 17-05-2024
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