Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM 2721/2019 in Suit 2910/2015
NOTICE OF MOTION NO. 2721 OF 2019
IN
S.C. SUIT NO. 2910 OF 2015
CNR NO. : MHCC010074662019
Hasumati Rasiklal Shah … Plaintiff
Versus
Nitin Rasiklal Shah & Anr. ...Defendants
Appearance:
Adv. Mr.Kantawala for Defendant No. 1 & 2.
Adv. Mr. Vivek Sharma for Plaintiff.
CORAM : SMT. S.S. NAGUR
JUDGE, (C.R.NO.4)
DATE : 30/10/2021
ORDER
The Notice of Motion is filed by the defendant no. 1 & 2 to
dismiss the suit based on suppression of facts as per the settled
provision of law. The Notice of Motion is supported by Affidavit of
Nitin Rasiklal Shah.
2. The defendant no. 1 & 2 stated that the plaintiff has suppressed
the facts. The plaintiff has adduced evidence in the proceedings filed
by her before Metropolitan Magistrate Court under Domestic Violence
Act. She has admitted certain facts. The suit itself is not maintainable.
The suppression of facts though are on the basis of documents which
are subsequent in point of time, nullifies the allegations made in the
plaint when filed in the year 2015. Therefore, nothing survives and the
suit itself is not maintainable. Hence, prayed to dismiss the suit.
-- 1 of 6 --
2 NM 2721/2019 in Suit 2910/2015
3. The plaintiff filed reply and stated that Notice of Motion is
totally misconceived and abuse of process of law. Issues are framed.
The plaintiff has filed affidavitinexaminationinchief and now it is for
cross examination of plaintiff's witness. The allegations in the affidavit
are on the basis of events that took place after the plaint and Written
Statement was filed. Therefore, cannot be the basis to dismiss the suit.
Hence, prayed to reject the Notice of Motion.
4. Heard Advocate Mr.Kantawala for Defendant No. 1 & 2 and
Advocate Mr.Vivek Sharma for Plaintiff. I have gone through the
contents of Notice of Motion and reply supported by Affidavit. I have
also gone through the contents of the plaint.
5. Advocate Mr. Kantawala for defendant no. 1 & 2 argued that the
present Notice of Motion is filed by the defendants on the basis of the
authority of the Hon'ble Supreme Court reported in
S.P.Chengalvaraya Naidu (dead) by LRs Vs. Jagannath (dead) by
LRs. & Ors. : AIR 1994 SC 853. Advocate Shri. Kantawala has drawn
my attention to the cross examination of the plaintiff in the
proceedings filed by her under Domestic Violence Act wherein she has
given certain admissions in respect of the suit property. The defendants
claim to be coowner of the suit property. The plaintiff has suppressed
facts in respect of documents, which are executed during the pendency
of the suit, thereby the present suit becomes infructuous and not
maintainable. Hence, prayed to allow the Notice of Motion.
6. Advocate Mr. Vivek Sharma for plaintiff argued that it is not the
defence of the defendants that there is any fraud, therefore the
authority relied by the defendants is not applicable to the present facts.
-- 2 of 6 --
3 NM 2721/2019 in Suit 2910/2015
Issues are framed and the suit is for the evidence of the parties. Hence,
prayed to dismiss the Notice of Motion.
7. The plaintiff has filed the suit seeking permanent injunction
thereby restraining the defendants from interfering her possession in
the suit property. The plaintiff claims to be absolute owner of the suit
property, which is denied by the defendants. Their contention is that
they are the coowners of the suit property.
8. The defendant no. 1 is son and the defendant no. 2 is daughter
inlaw of the plaintiff. There was compatibility issue with defendant
no. 2 when she came into the family of the plaintiff after marriage with
defendant no. 1. The plaintiff has in detail stated the incidents, which
has caused her mental and physical torture at the hands of the
defendants. The plaintiff was 83 years old when the suit was filed in
the year 2015. Now she is around 89 years old.
9. The proceedings under Domestic Violence Act is filed by her. The
evidence of the plaintiff is recorded. She is thoroughly cross examined
by the defendants in the month of October, 2014. The defendants on
the basis of said cross examination now wants this Court to come to
the conclusion that the plaintiff's suit doesn't survive and has become
infructuous, therefore not tenable. The other ground is execution of
certain documents i.e. Deed of Conveyance dated 01.09.2017 in
respect of property owned by Harakchand Makanji Shah situated at
55/57 Bazar Gate Street.
10. In para 9 of the Affidavit in Support of Notice of Motion, the
defendants stated that the suppression which though are on the basis
-- 3 of 6 --
4 NM 2721/2019 in Suit 2910/2015
of documents which are subsequent in point of time, nullifies the
allegations which are made in the plaint as it was filed in the year
2015. I have gone through the authority relied by the defendant
(S.P.Chengalvaraya Naidu (dead) by LRs Vs. Jagannath (dead) by
LRs. & Ors. : AIR 1994 SC 853. The facts of the case is that,
“One Jagannath was the predecessorininterest of the respondents.
He was working as a clerk with one Chunilal Sowcar. Jagannath
purchased at court auction the properties in dispute which
belonged to the appellants. Chunilal Sowcar had obtained a decree
and the court sale was made in execution of the said decree.
Jagannath had purchased the property in the court auction on
behalf of Chunilal Sowcar, the decree holder. By a registered deed
dated November 25, 1945, Jagannath relinquished all his rights in
the property in favour of Chunilal Sowcar. Meanwhile, the
appellants who were the judgmentdebtors had paid the total
decretal amount to Chunilal Sowcar. Thereafter, Chunilal Sowcar,
having received the decretal amount, was no longer entitled to the
property which he had purchased through Jagannath. Without
disclosing that he had executed a release deed in faovur of Chunilal
Sowcar, Jagannath filed a suit for partition of the property and
obtained a preliminary decree. During the pendency of the suit, the
appellants did not know that Jagannath had no locus standi to file
the suit because he had already executed a registered release deed,
relinquishing all his rights in respect of the property in dispute, in
favour of Chunilal Sowcar. It was only at the hearing of the
application for final decree that the appellants came to know about
the release deed and, as such, they challenged the application on
the ground that nondisclosure on the part of Jagannath that he
was left with no right in the property in dispute, vitiated the
proceedings and, as such, the preliminary decree obtained by
Jagannath by playing fraud on the court was a nullity”.
On these facts, the Hon'ble Apex Court held that,
“The Courts of law are meant for imparting justice between the
parties. One who comes to the court, must come with clean hands.
We are constrained to say that more often than not, process of the
court is being abused. Propertygrabbers, taxevaders, bankloan
dodgers and other unscrupulous persons from all walks of life find
the court process a convenient lever to retain the illegalgains
indefinitely. We have no hesitation to say that a person whose case
is based on falsehood, has no right to approach the court. He can
be summarily thrown out at any stage of the litigation”.
11. The nature of the present proceeding is permanent injunction
restraining defendants, who are real son and daughterinlaw of age
-- 4 of 6 --
5 NM 2721/2019 in Suit 2910/2015
old plaintiff now around 89 years. The proceedings under Protection of
Women from Domestic Violence Act is to provide more effective
protection of the rights of women guaranteed under Constitution who
are victims of violence of any kind occurring within the family. The
procedure to be followed by under Protection of Women from
Domestic Violence Act is as per Section 28 shall be governed by the
provisions of Code of Criminal Procedure.
12. The evidence adduced before the said proceedings and the
admissions brought on record by the defendants during the cross
examination of the plaintiff in that proceeding cannot be considered
for the present facts of the suit and on that basis itself the suit cannot
be dismissed. The defendants have admitted in their affidavit to the
Notice of Motion that the events are subsequent to the filling of the
plaint. Therefore, the ratio of the above authority of Hon'ble Apex
Court is not applicable to the present facts of the suit. The Notice of
Motion is not tenable. It is filed only to prolong the hearing of the suit.
Hence, pass following order:
ORDER
1. The Notice of Motion is rejected with cost of Rs.
2,500/(Two Thousand Five Hundred Only) to be
paid to the plaintiff.
2. Accordingly, Notice of Motion is disposed of.
(SMT. S.S.NAGUR)
Judge
Dt.: 30/10/2021 City Civil Court,
Gr. Mumbai
Declared on : 30/10/2021
Dictated on : 30/10/2021
Typed on : 30/10/2021
Checked & Signed on : 30/10/2021
-- 5 of 6 --
6 NM 2721/2019 in Suit 2910/2015
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE TIME NAME OF STENOGRAPHER
30/10/2021 5.15 p.m. Prachi Y. Potdar
Stenographer – Grade I
Name of the Judge HHJ Smt. S.S. Nagur
(C.R.NO.4)
Date of Pronouncement of
Judgment/Order.
30/10/2021
Judgment/order signed by P.O on 30/10/2021
Judgment/order uploaded on 30/10/2021
-- 6 of 6 --