Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 N/M 2853/19in Suit 1154/18
IN THE BOMBAY CITY CIVIL COURT, AT MUMBAI
NOTICE OF MOTION NO.2853/2019
(CNR No.MHCC010078852019)
IN
S.C. SUIT NO. 1154/2018
Mrs. Vijayalaxmi Saini nee
Vijayalaxmi Chatar Singh Chauhan ..Plaintiff
V/s.
1. Mrs. Sushma Vijay Chauhan
2. Mrs. Renu Jayant Todai
3. Mrs. Asha Vinod Chauhan. ..Defendants
Appearance:
Adv. Mr. Pratap Singh for plaintiff.
Adv. Mr. Patil for defendant no.1.
CORAM : HHJ Shri V.V Vidwans.
C. R. No.03.
DATE : 11.12.2019.
ORAL ORDER
1. This Notice of Motion (N/M) is taken out by plaintiff for
taking action for committing breach of order of the court by defendant
no.1 and for contempt in respect of deliberate and willful disregard to
the order of the court dated 5.3.2019 in N/M No. 2713/2018. The
Motion is supported by an affidavit of plaintiff Mrs. Vijayalaxmi Saini
nee Vijayalaxmi Chattter Singh Chauhan. Defendant no.1 has opposed
the Motion by filing affidavit in reply and copies of photographs filed on
record. Seen and considered the same.
2. I have heard Ld. Counsel for the plaintiff and Ld Counsel
for defendant no.1.
3. It is submitted that, plaintiff has filed this Suit against
defendants for seeking declaration and injunction in respect of suit plot
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along with structure standing thereon. The plaintiff had taken out N/M
against defendant no.1 seeking to restrain her from storing tiles and
other articles in front of her office – at Shop no.6, situated at plot of
land bearing Plot No.1309/2 and 3, CTS No.1308/4, Survey No.413
448, Kabali Plot, Opp. Maharana Hotel Building, Chembur Naka,
Mumbai 400 071.
4. It is submitted that, this court had allowed the Notice of
Motion filed by plaintiff bearing No.2713/18 vide order dated 5.3.2019
and restrained the defendant no.1 partly from storing tiles and other
articles in front of office of the plaintiff. It is submitted that, the court
had prima facie found substance in the grievance made by the plaintiff
in the Motion and in terms of prayers clause (b), the Motion was
allowed. It is submitted that, inspite of order of the court, defendant
no.1 has continued her act of negligence and disregard to the order of
the court. It is therefore submitted that, the defendant no.1 is guilty of
breach of order of the court and willful disregard to the same, and she
is liable to be punished for contempt of the court.
5. Ld. Counsel for the plaintiff specifically argued that, as per
letter of advocate of the plaintiff dated 10.5.2019 sent to the defendant
no.1 by RPAD orders passed by this court were communicated for
necessary compliance and asked her to restrain herself from storing
goods and tiles in front of the office of the plaintiff. Said order was duly
served on the defendant no.1. Inspite of receipt of said order, defendant
no.1 has continued to disobey the order of the court and therefore, she
has committed breach of the order of the court and action to be taken
against her. Ld. Counsel for the plaintiff has relied upon copies of
documents filed with the Motion vide Exhs.A,B and C, which consist of
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attested copy of order of this court, copy of letter issued to Sr. P.I,
Chembur police station dated 17.5.2019 and copy of track report of
RPAD and photographs showing how tiles and other materials are
stored by the defendant no.1 in front of the office of the plaintiff,
thereby causing inconvenience and nuisance and hardly any space is left
for ingression to her office.
6. I support of his submission Ld Counsel for the plaintiff has
relied on following authority :
Lalita Sharanji V/s. Deoki Devi (Civil Appeal No.394 of
2009) decided on 16.2.2018 (Supreme Court).
7. I have gone through the above authority and find that, the
Hon'ble Apex Court has observed that, when there is willful
disobedience and knowingly committed default in compliance with the
directions a case for contempt is made out. In the said case, conduct of
respondent was found contemptuous. She had earlier disobeyed
injunction order passed by the court after filing of contempt petition
and demolished construction raised by her and had given an
understanding to the court that she would not raise any further
construction etc.
8. In the above said case, on facts, the Court had found
conduct of the respondent contemptuous and the court was satisfied on
the basis of photographs filed on record that the respondent had
violated the orders of the court. In the present case, on facts, I am not
satisfied from the photographs filed on record that, subsequent to
passing of the orders of the court, there has been repetitive acts of non
compliance of the directions of the court by defendant no.1. Hence, I
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hold that, the ratio of above authority is distinguishable on facts.
9. Per contra, the defendant no.1, in her affidavit in reply, has
contended that, the N/M taken out by the plaintiff against defendant
no.1 for allegedly breach of the order of the court and contempt of
court is false and frivolous. It is submitted that the plaintiff is trying to
take undue advantage of the order of the court dated 5.3.2019. Ld.
Counsel for the defendant no.1 submitted that, in the WS, the
defendant has taken preliminary objection as to the jurisdiction of this
court and submitted that the suit filed by the plaintiff against
defendant no.1 itself is not maintainable, as suit property is a tenanted
property. Under the above circumstances, it is submitted that, present
Motion is taken out by the plaintiff only to delay the proceedings, as
suit itself is not maintainable.
10. The defendant no.1 further contended that, all averments
made in the Motion are not supported by the documents on record.
Defendant no.1 has not committed any breach of the order of the court
or not disobeyed the orders of the court. The defendant no.1 has not
caused any obstruction or hardship to the plaintiff, as entire suit
property is nothing but a hardware shop and the plaintiff is fully aware
about the factual aspect of the premises and same is used for storage of
building material. The defendant no.1 has referred to photographs filed
with the affidavit in reply vide Annexures1 and 2 and submitted that,
there is clear indication in the photographs that the plaintiff has a clear
entry in the office and there is no obstruction caused because of
building material stored in the premises. These annexures consist of
both old and new photographs. It is also submitted that, the defendant
no.1 has filed a suit bearing no. 16299/18 against BMC seeking
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injunction and Ld. Judge of C.R. 08 was pleased to pass adinterim
order in favour of the defendant no.1 and by said order, BMC is
restrained from removing stock or material, without following due
process of law. Copy of Roznama of the said order is annexed with the
affidavit in reply. It is submitted that, as per order dated 14.12.2018,
defendant no.1 was protected, therefore the plaintiff has moved this
Motion only to harass the defendant no.1. Under the above
circumstances, the N/M is liable to be dismissed with costs.
11. I have gone through the Motion and accompanying
documents as well as affidavit in reply filed on behalf of the defendant
no.1. I have seen photographs filed on record by the plaintiff as well as
defendant no.1. As per order passed by this court in the N/M
No.2713/18 dated 5.3.2019, in para 7, this court has observed that, the
defendants no.1 and 2 have not disputed that they have stored tiles,
articles and goods in the open space in front of the office of the plaintiff.
It might be causing obstruction and nuisance to the plaintiff. Therefore,
there is no denial of allegations of the plaintiff that said articles are
causing obstruction in the ingression of the plaintiff to her office. But, it
is further observed that, outside the shutter, there is a pathway of about
3 ft. wide beyond which old tiles are found stacked in the open space of
the compound. Relying on this admission the Motion was allowed and
defendant no.1 was temporarily restrained from storing any articles,
tiles and other goods in front of the office of the plaintiff in the
corridor/ open space outside her chamber. The photographs show that,
tiles are stored in front of door of the office of the plaintiff, however
there appears space of entry in the office. Therefore, merely on the
basis of photographs filed on record, it is difficult to come to the
conclusion that, the defendant no.1 has stored tiles and other articles in
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front of office of the plaintiff after passing of the order by the court, so
as to create obstruction in her way to the office. It can also be seen
that, tiles, other articles and building material were already stored in
the open space. Whether said act of the defendant no.1 was legal or
illegal is a matter of trial and no finding can be recorded at this interim
stage about said acts of defendant no.1. It appears that the plaintiff
ought to have moved this court praying for temporary injunction in
mandatory form to remove the tiles, building material and other articles
from the way to the office of the plaintiff. But, unfortunately, no such
prayer has been made by the plaintiff.
12. In view of above observations, I am of the view that, the
plaintiff has not been able bring on record specific evidence, except
photographs, to show that the defendant no.1 has stored tiles and other
articles and material in front of door of the office of the plaintiff after
order was passed by this court, which becomes evident because there
has been finding recorded by this court that tiles, articles and other
building material was already stored in the open space and this fact was
not denied by the defendant no.1 in her reply.
13. Under the above circumstances, I am of the opinion that, it
is just and necessary to allow the plaintiff to lead specific evidence on
this point during trial of the case, which will serve the purpose. There is
also grievance of the defendant no.1 that trial of this case is delayed by
the plaintiff on the ground that objection as to the jurisdiction of the
court is taken in the WS. Hence, I am of the opinion that, it will be just
and proper to decide this point along with the Suit by giving liberty to
the plaintiff and defendants to lead specific evidence in support of their
allegations made in the Motion. The plaintiff can also be given liberty to
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move this court seeking mandatory relief. Hence, I proceed to pass
following order:
ORDER
1. It is held that, plaintiff has brought on record prima
facie evidence regarding storing of the tiles, articles and
other building material in front of door of her office in
the form of photographs on record, however that is not
found sufficient to proceed against defendant no.1 for
taking action for disobedience of the order of the court/
contempt of court, at this stage.
2. In view of above, the Notice of Motion No.2853/2019 is
disposed of with liberty to the plaintiff to take out fresh
Notice of Motion supported by specific evidence, as
observed in the above order, against defendant no.1.
3. Trial of the Suit is expedited.
(V.V. Vidwans)
Judge, City Civil Court,
Date: 11.12.2019 Gr. Bombay (C.R. 03)
Dictated on : 11.12.2019
Typed on : 11.12.2019
Signed by HHJ on : 12.12.2019
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED JUDGMENT/ ORDER.
UPLOADED ON : 12.12.19
TIME: 3.23 pm (NITIN V. UBALE)
SELECTION GR. STENOGRAPHER.
Name of the judge (with Court Room No.) Shri V.V. Vidwans, Judge, (C.R. 03)
Date of pronouncement of Judgment/ Order 11.12.19
Judgment/ order signed by P.O on 12.12.19
Judgment/ order uploaded on 12.12.19
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