Final Order 1

Order Details: Notice of Motion
Pdf Text: MHCC010080752019
Presented on : 08/03/2019
Registered on : 08/03/2019
Decided on : 19/01/2024
Duration : 4 Y 10 M 13 D
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
ORDER
IN
NOTICE OF MOTION NO.2929 OF 2019
IN
S. C. SUIT NO.1630 OF 2019
Pooja Anil Arora & Anr. ... Plaintiffs
V/s.
Sangeeta Dilip Arora & Anr. ...Defendants
CORAM : HIS HONOUR JUDGE
SHRI. R. R. BHAGWAT
CITY CIVIL COURT
GR. BOMBAY ( C.R.NO.65)
DATE : 19th January, 2024
Adv. Ms. Shital Malvankar for the plaintiffs.
Adv. Mr. Sameer Khedekar for defendants.
ORDER
The plaintiffs have taken out present Notice of
motion for directing the defendants to pay the sum of
Rs.3,00,000/- towards interim damages to the plaintiffs as
stated in Exh.’H’ of the plaint. Perused affidavit in support,
affidavit in reply filed by defendant No.1, affidavit in rejoinder
by plaintiff No.1 and the suit proceeding. I have also gone
through citations relied by both sides. Heard Ld. Counsel Ms.
Shital Malvankar for the plaintiffs and Ld. Counsel Mr. Sameer
Khedekar for defendants.
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2. It is case of the plaintiffs that plaintiff No.1 is
mother of plaintiff No.2 and widow of Late Anil. Defendant
No.1 is sister-in-law of plaintiff No.1 and aunt of plaintiff No.2.
Defendant No.2 is husband of defendant No.1 and uncle of
plaintiff No.2. The plaintiffs and defendants are residing
together in the suit flat as described in para 2 of the plaint. It
is case of the plaintiffs that on 02.12.2018 the defendants
brutally assaulted plaintiff No.1 in the kitchen of the suit flat.
Plaintiff No.1 sustained injury to her left knee making her to
undergo surgery and medical treatment. The plaintiffs have
claimed hospitalization charges, operation and medical
expenses and other expenses as mentioned in Exh.’H’ in the
plaint as an interim damages.
3. The defendants have opposed the Notice of Motion
on the ground that Notice of Motion is not maintainable. The
plaintiffs have claimed total damages of Rs.6,00,000/- in the
plaint including interim damages of Rs.3,00,000/-. The present
suit is for damages. The defendants relied upon observations
in para 18 in the case of
Maharashtra Jeevan Pradhikaran
through its Member Secretary & Anr. V/s. M/s. Lark
Construction Pvt. Ltd, 2005(1) ALL MR 479 to state that
temporary injunction should not be granted by way of final
relief in respect of relief not claimed in the main suit. They
prayed for dismissal of the Notice of Motion.
4. Ld. Counsel Ms. Shital Malvankar reiterated
pleading in the plaint and referred documents. According to
her, definition of assault is covered under law of torts. There is
difference between money recovery suit and suit for damages
or compensation. Contract is expected in money recovery suit.
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The plaintiffs have not claimed any relief as is claimed in
regular Civil suit. Interim damages are claimed by resorting to
Section 151 of the C.P.C. and not as per Order XXXIX Rule 1
and 2 of the C.P.C. She referred para 22 in the case of
R.S.E.B. and another V/s. Jai Singh and others, AIR
1997 Rajasthan 141 and para 9 in the case of
Vareed
Jacob V/s. Sosamma Geevarghese and others, AIR 2004
Supreme Court 3992 for stating that interim damages can
be granted. According to her, plaintiff No.1 had suffered
serious injuries making her bed ridden for three and half
months. This is not malafide litigation. The defendants have
contended that case of the plaintiff is false. There is no denial
to contents in the plaint. She prayed to allow the Notice of
Motion.
5. Ld. Counsel Mr. Sameer Khedekar for the
defendants repeated contents in the affidavit in reply and he
focused on observations in the case of
Maharashtra Jeevan
Pradhikaran through its Member Secretary & Anr. V/s.
M/s. Lark Construction Pvt. Ltd, 2005(1) ALL MR 479
(cited supra). He further submitted that the plaintiffs have
claimed half of the amount of final relief. Medical evidence is
supposed to be considered after trial is concluded. F.I.R. is
registered against the defendants. Plaintiff No.1 suffers
injuries accidentally. Notice of Motion is not maintainable. He
prayed for dismissal of the Notice of Motion.
6. If rival contentions are taken into account, it
appears that defendant No.1 is sister-in-law of plaintiff No.1.
The plaintiffs as well as the defendants are residing together.
The plaintiffs have specifically narrated particulars of the
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incident dated 02.12.2018 in para 7 of the plaint. The plaintiffs
have further narrated particulars of medical treatment
received by plaintiff No.1 regarding her knee injury.
Furthermore, offence was registered against the defendants at
Marine Drive Police station for offences under Sections 323,
325, 506(2) r/w. 34 of the I.P.C. It is necessary to consider that
relief of interim damages is not covered under Order XXXIX
Rule 1 and 2 of the C.P.C. As the defendants are being
prosecuted for above stated offences, there is lack of specific
evidence to show that acts of the defendants made plaintiff
No.1 to suffer injuries. Interim damages cannot be availed by
drawing such presumptions regarding involvement of the
defendants in acts making plaintiff No.1 injured. Specific
evidence is required to be brought on record before awarding
damages. Though the plaintiffs are having liberty to advance
evidence in respect of their claim of damages, they are not
entitled to damages as an interim relief. For all these reasons,
the plaintiffs are not justified in giving go by to other
provisions of the C.P.C. while insisting for granting relief under
Section 151 of the C.P.C.. In the case of
R.S.E.B. and
another V/s. Jai Singh and others, injury was caused
because overhead electric wires were not properly maintened.
Case of
Vareed Jacob V/s. Sosamma Geevarghese and
others is dealing with aspects covered under Order XXXVIII
and Order XXXIX of the C.P.C. Ratio in above referred citations
relied by the plaintiffs is not applicable to the case in hand.
Hence, I pass following order -
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ORDER
1. Notice of motion No. 2929 of 2019 in Suit No. 1630
of 2019 is dismissed.
2. Proceeding of Notice of Motion No.2929 of 2019 in
Suit No. 1630 of 2019 is closed.
(R. R. Bhagwat)
Date- 19.01.2024 Judge,City Civil Court,
Gr. Bombay.
Dictated on : 19.01.2024
Typed on : 20.01.2024
Signed on : 20.01.2024
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE
ORIGINAL SIGNED JUDGMENT/ORDER.”
22.01.2024 at 3.10 pm ( Samruddhi Jadhav)
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court
room No.)
HHJ Shri. R.R. Bhagwat (C.R.No.06)
Date of Pronouncement of
JUDGMENT/ORDER
19/01/2024
JUDGMENT/ORDER signed by
P.O.on
19/01/2024
JUDGMENT/ORDER uploaded on 22/01/2024
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