Order 1

Order Details: Notice of Motion
Pdf Text: N/m No. 2257/18 in Suit No. 6759/06. 1 Date :03.02.2020.
IN THE BOMBAY CITY CIVIL COURT FOR GREATER MUMBAI
NOTICE OF MOTION NO. 2257 OF 2018
(CNR NO.MHCC010072802018)
IN
SUIT NO. 6759 OF 2006
(CNR NO.MHCC010098682006)
(HIGH COURT SUIT NO. 2193 OF 2006)
Raj Aloni Alias Rajbir Kaur ...Plaintiff
Versus
Mrs. Harcharan Kaur and others ... Defendants
Appearances :
Adv.K.Andrew for plaintiff.
Adv.Saakshi Saboo a/w Sayyam Maheshwari i/b RavalShah and
Company for defendant no.4 and 6.
Coram : His Honour Judge
Shri. A.H.Laddhad
CR No. : 7
Date : 03/02/2020.
ORDER
1. Instant notice of motion is filed by the plaintiff seeking
following reliefs :
a) That this honourable court be pleased to pass an order
under order 39 rule 2 A of the CPC ordering that the
defendant No. 4/Defendant no.6 be detained in civil prison
for a period of 3 months for having committed flagrant
breach of the orders passed by the honourable court dated
10 June 2009 which restrained the creation of third party
rights of any nature whatsoever or alteration of the status
quo in respect of any of the properties of the said deceased
by making constructions on the suit property and letting it
out to third parties repeatedly.
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N/m No. 2257/18 in Suit No. 6759/06. 2 Date :03.02.2020.
b) That Court Receiver, High Court Bombay be appointed as
Receiver under Order 40 Rule 1 of the C.P.C., of the
properties belonging to the deceased as disclosed by the
Defendant no.4 in her affidavit dated 5th September 2013,
with all powers including taking steps to ensure that the
suit properties get the maximum profits and are not wasted
and with such directions to administer the properties, as
per the directions of this court,
c) For costs of this Notice of Motion and,
d) For such further and other reliefs and the nature and
circumstances of the case may require in the ends of justice.
2. It is contended by the plaintiff that she has filed suit for
administration and partition of property of her late father and grant of
1/5th share.
3. It is contended by the plaintiff that vide order dated
20/09/2006 adinterim relief was granted in her favour and which was
confirmed vide order dated 10/06/2009 passed in Notice of Motion No.
2565/2006. The Hon'ble Court vide order dated 10/06/2009 granted
injunction in respect of properties and also directed the defendant no.4
to disclose the properties known to her.
4. It is alleged by the plaintiff that the defendant no.4 committed
breach of order, did not disclose on affidavit the movable and
immovable properties of the deceased father. During pendency of the
suit, the defendant no.4 had got transferred some of the properties to
her name as well as some of the properties to the name of her daughter.
Therefore plaintiff took out Notice of Motion No. 2566/2013 for taking
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N/m No. 2257/18 in Suit No. 6759/06. 3 Date :03.02.2020.
action of disobedience under Order 39 Rule 2A of the Code of Civil
Procedure against the defendant. However, the aforesaid motion came
to be dismissed.
5. It is further contended by the plaintiff that the defendant
no.4 without supplying copy clandestinely filed affidavit dated
05/09/2013 disclosing socalled immovable properties. The defendant
no.4 did not whisper about the movable properties even though she was
directed to disclose about the same. Even she did not deny the
existence of movable property left by the deceased father of the
plaintiff.
6. It is contended by the plaintiff that on 19/03/2018 the
defendant no.4 during her crossexamination made disclosure that she
has dealt with the suit property and let it on hire and thus she is
earning huge amount of it. Thus, it is clear that the defendant no.4 did
not disclose the aforesaid fact and she is earning huge amount.
Therefore the plaintiff contended that the action under Order 39 Rule
2A be initiated against the defendant no.4.
7. The notice of motion is opposed by defendant no.4. It is
contended by the defendant that in view of order dated 10/06/2009
she has disclosed the property of deceased in her hand. The order of
Hon'ble High Court is of 2009 whereas the construction of hall on the
plot admeasuring 275 yards made in the year 2008. Thus, there is no
breach of the order.
8. It is further contended that there is no cause of action for the
plaintiff to file instant motion as the earlier motion on the same ground
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was dismissed by this Court. It is further contended that the defendant
no.3 who is the sister of plaintiff, is residing at Punjab and are well
aware about the existence of properties disclosed by the defendant no.4.
During her crossexamination she has admitted that the plaintiff is also
aware of the properties of the deceased since the date of filing of the
suit. Hence disclosure at the instance of defendant no.4 is not
warranted. The sum and substance of defence of defendant no.4 is that
she has not flouted any of the order of the Court.
9. Heard both the sides. Perused motion and say. It appears
that on 10/06/2009 the Hon'ble High Court has specifically passed the
order restraining the defendants from transferring or otherwise dealing
with the properties in the suit shown in Exh.A to the plaint. The
defendant no.4 was further directed to make a disclosure of movable
and immovable properties of the deceased known to her. The plaintiff
alleged that the defendant no.4 during her crossexamination admitted
that she has transferred some of the properties in the name of her
daughter. She is receiving Rs.5,30,000/ every year from the
agricultural land. She further deposed that she has rented hall to Axis
Bank since 2014. Thus, it is contention of the plaintiff that the
defendant no.4 flouted the order dated 10/06/2009 passed by Hon'ble
High Court.
10. It is not in dispute that the plaintiff filed similar motion
alleging that the defendant no.4 flouted the order dated 10/06/2009
whereby the property has been transferred in the name of daughter of
defendant no.4. The aforesaid motion came to be dismissed by my ld.
Predecessor vide, order dated 21/11/2014 wherein it was specifically
observed by my Predecessor that the said transfer was done by the
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deceased defendant no.1 in favour of defendant no.6. My Predecessor
further observed that the defendant no.4 filed affidavit of disclosure of
the properties, from the said affidavit the defendant no. 4 cannot said to
be committed any disobedience of the order.
11. In the present notice of motion the plaintiff contended that
for filing present notice of motion new cause of action arose on
19/03/2018 when the defendant no.4 disclosed that she has given the
agricultural land on contract basis and rented hall situated on open plot
to the Axis Bank in 2014. Therefore, it is the contention of the plaintiff
that the aforesaid material shows that defendant no.4 flouted the order
of the Court.
12. In my view, the contention of the plaintiff that the defendant no.4
transferred the suit land in favour of her daughter, the aforesaid issue is
already decided by my ld. Predecessor, hence which cannot be re
agitated in the present motion.
13. The Hon’ble Apex Court in case of Food Corporation of India
V/s. Sukh deo Prasad, reported in (2009) 5 SCC 655in its para No.
38 held that “The power exercised by a court under Order 39 Rule 2A of
the Code is punitive in nature, akin to the power to punish for civil
contempt under the Contempt of Courts Act, 1971. The person who
complains of disobedience or breach has to clearly make out beyond any
doubt that there was an injunction or order directing the person against
whom the application is made, to do or desist from doing some specific
thing or act and that there was disobedience or breach of such order.
While considering an application under Order 39 Rule 2A, the court
cannot construe the order in regard to which disobedience/breach is
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alleged, as creating an obligation to do something which is not mentioned
in the “order”, on surmises, suspicions and inferences. The power under
Rule 2A should be exercised with great caution and responsibility.”
14. On careful reading of the order dated 10/06/2009, there is an
injunction to transfer the property. The aforesaid order was made with
object that the property should be available till the conclusion of the
trial. As per the version of defendant no.4, she only given the
agricultural land for cultivation on contract basis. Therefore, there is no
transfer of the aforesaid land detrimental to interest of plaintiff. The
order dated 10/06/2009 does not speak that the plaintiff to account for
the earnings out of the property. In my view, the defendant failed to
make out the case of disobedience or breach beyond doubt. Hence, in
my view, there is no infringement of the order. Hence, I do not find any
substance in the motion and thus same is dismissed with cost. Hence
the order :
ORDER
1. Notice of Motion No. 2257/2018 is dismissed with cost.
2. Notice of Motion No. 2257/18 is disposed off
accordingly.
(A.H.Laddhad)
Judge
Bombay City Civil Court
Dated : 03/02/2020. Greater Mumbai.
Dictated on : 03/02/2020.
Typed on : 03/02/2020.
Draft Submitted on : 06/02/2020.
Checked on : 07/02/2020
Signed on : 07/02/2020
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N/m No. 2257/18 in Suit No. 6759/06. 7 Date :03.02.2020.
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
07/02/2020 at 4.00 p.m. (Ms. M.A.Kulkarni)
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court room
no.)
Shri A.H.LADDHAD
(C.R. No.7)
Date of Pronouncement of
JUDGMENT/ ORDER
03/02/2019
JUDGMENT/ORDER signed by P.O.
on
07/02/2019
JUDGMENT/ORDER uploaded on 07/02/2019
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