Final Order 1

Order Details: Notice of Motion
Pdf Text: IN THE COURT OF CITY CIVIL FOR GREATER BOMBAY
AT BOMBAY
NOTICE OF MOTION NO. 3002 OF 2019
IN
S.C.SUIT NO.8582 OF 1992
(HIGH COURT SUIT NO.724 OF 1992)
M/s.Bal Enterprises ... Applicant
In the Matter between...
M/s. Bal Enterprises, … Applicant/
(Org.Plaintiff)
Versus
1. Chintaman Sitaram Gokhale (Deleted),
2. Mrs.Nirmala Chintaman Gokhale,
3. Miss.Sandhya Chintaman Gokhale,
4. Miss.Medha Chintaman Gokhale (Deleted),
5. Miss. Rupa Chintaman Gokhale,
6(a). Mrs. Subhangi P.Modak,
7. Miss.Shakuntala Arvind Gokhale,
8. Mrs.Anjali Arvind Gokhale,
9. Mr.Rajendra Arvind Gokhale, … Respondents/
10. Mandar Arvind Gokhale (Org.Defendants)
CORAM: HIS HONOUR JUDGE SHRI K.P.NANDEDKAR
(COURT ROOM NO.9)
DATE : 19th AUGUST, 2020
Mr.Niranjan Parekh, ld. adv. for plaintiff.
Ms.Bharat Joshi, ld adv. for defendant nos.6A and 7 to 10.
Mr.Ajay Misthry, ld. Adv. For defendant nos.3 and 5.
ORDER
1. This notice of motion is filed by plaintiff for striking off the
defence taken by defendant no.6(a) being legal heir of deceased
defendant no.6 in the written statement filed by defendant no.6(a) on
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18/11/2009 as said defence raised by defendant no.6(a), according to
plaintiff, is setting up new case contrary to the admissions given by
original defendant no.6 in his written statement dated 18/06/1992.
2. Plaintiff’s C.A.Mr.Uday Dhurat has filed his affidavit in support of
notice of motion contending that Mr.Chintaman Sitaram Gokhale,
defendant no.1, is Karta and Manager of Hindu HUF consisting of
defendant nos.1 to 5. Original defendant no.6 Mr.Arvind Sitaram
Gokhale was Karta and Manager in his HUF including himself and
defendant nos.7 to 10. At all relevant time defendants were the owners
of immovable properties situated at VileParle, Mumbai and those
properties will be referred to as “the said property”. By written
agreement dated 28/08/1983 executed between plaintiff and
defendants, plaintiff agreed to purchase and acquire said property
together with structure standing thereon. Plaintiff agreed to purchase
said property from defendants upon the terms and conditions
particularly described in said agreement.
3. It is contended that upon execution of the documents plaintiff
and defendants started discharging their respective obligations under
the agreement. As such for discharging the said obligation, plaintiff
negotiated with the tenants/ occupants occupying diverse portion of the
structure standing on said property. While acting upon said agreement
plaintiff who was put under the possession of that portion of said
property which was not occupied by the owners, plaintiff commenced
and completed construction of first phase of development of said
property. In the process of development of first phase, plaintiff incurred
and spent substantial amount, plaintiff throughout said period was
ready and willing to commence the development of second phase after
fortunately having completed first phase. Plaintiff would not take
effective steps in the matter for completion of second phase on account
of the obstruction on the part of defendant nos.1 to 5. Hence, plaintiff
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has filed this suit for specific performance of agreement dated
28/08/1983 and plaintiff has sought declaration that said agreement
and power of attorney dated 08/03/1984 are valid and substantive.
Plaintiff has also prayed for injunction and various other reliefs as set
out in the plaint.
4. It is contended that thereafter plaintiff took out notice of motion
and made application for adinterim relief and the Court passed order
dated 24/02/1992 observed that adinterim injunction in terms of
prayer clause(b) of notice of motion was granted. The prayer clause (b)
of notice of motion as is under;
“(b) that pending the hearing and final disposal of suit
defendants themselves, their servants and agents be restrained
by an order and injunction from parting with possession of that
part of said property which is in physical possession of respective
defendants or for order and injunction for restraining defendants
from alienating it in any manner transferring, encumbering or
creating third party rights or in respect of their joint/ and/or
several interest in said property described in Exh.A annexed to
the plaint or creating any new agency in respect of said old
structures standing on said property.”
5. It is contended that prior to prior to filing of this suit Mr.Arvind
Gokhale and others who are defendant nos.6 to 10 of this suit in
January, 1995 filed Suit no.2182/1995 against the defendant nos.1 to 5
of this suit along with plaintiff of this suit. It is pointed out that plaintiff
of this suit was impleaded as defendant no.6 in Suit No.2182/1995,
further BMC was impleaded as defendant no.7 in suit which was filed
for mandatory injunction directing BMC to carry out necessary repairs
and construction on second floor of said property at the costs of
defendant no.6 of Suit No.2182/1995 (plaintiff of this suit).
6. It is pointed out that defendant nos.6 to 10 of this suit in para2
of plaint of Suit no.2182 of 1995 averred that by an agreement dated
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28/08/1983, executed between plaintiffs and defendant nos.1 to 5 on
said suit, on the one hand as coowners and defendant no.6 on the
other hand as the developer, the plaintiff and defendant nos.1 to 5
agreed to give said property to defendant no.6 for development and
further plaintiff agreed for sale of said premises on the terms and
conditions more particularly described in said agreement.
7. It is contended that defendant no.6 to 10 of this suit who were
plaintiff of suit no.2182/1995 had taken out notice of motion in said
suit for directing BMC to allow defendant nos.6 to 10 to repair second
floor of suit property. By order dated 10/04/1995 the Court permitted
plaintiff of said suit to carry out repairs to the suit structure as per
Exh.B annexed to the plaint of said suit. In or about 06/03/1996
defendant nos.1 to 5 of this suit also filed Suit no.1275/1996 against
defendant nos.6 to 10 of this suit by impleading defendant nos.6 to 10
of this suit as defendant nos.1 to 5 of suit No.1275/1996. Said suit was
also filed against this plaintiff by impleading plaintiff as defendant no.6
as said suit, BMC was impleaded as defendant no.7 in said suit. It is
pointed out that said suit was filed for order and injunction restraining
defendant nos.6 to 10 of this suit along with plaintiff of this suit from
dealing with and disposing or transferring or alienating or encumbering
or creating third party rights in suit property of said suit along with
other reliefs.
8. It is contended that in para nos.6, 7(a), 9(c) and 9(d) of plaint of
Suit No.1275/1996 it was pleaded that….
“6. The plaintiffs state that by an Agreement executed on 28th
August, 1983, between the plaintiffs and the defendant Nos.1 to 5
on one part and the defendant no.6 on the other part, the
defendant no.6 agreed to develop and acquire for development
the property described in the schedule being Exh.B hereto from
the plaintiffs and the defendant no.1 to 5. Hereto annexed and
marked Annexture E is a copy of the said agreement dated 28th
August, 1983 executed between the parties hereto.”
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9. Plaintiffs state that by an agreement dated 28/08/1983, plaintiffs
and defendant nos.1 to 5 of said suit on one part and defendant no.6 of
said suit on another part agreed to develop and acquired for
development of the property described in schedule being Exh.B annexed
to the plaint of said suit. Defendant no.6 of said suit agreed to develop
and acquired said property from plaintiff and defendant nos.1 to 5 of
said suit.
“7. As per the aforesaid agreement dated 28th August, 1983 the
defendant no.6 was to develop the property described at Exh.B
in two phases i.e. by constructing two buildings. In addition to
the monetary consideration to be paid to defendants no.6 was
also to provide two flats of 1000 sq.ft. each of the 1st and 2nd
floor of the building which was to be constructed in the second
phase. The defendant no.6 had also agreed to provide
transit/temporary alternative accommodation to the plaintiffs and
defendant nos.1 to 5 in the building which was to be constructed
in the 1st phase”
10. Para9A of plaint of suit no.1275/1996 states that after execution
of the aforesaid agreement partner of defendant no.6 viz Mr.Bal
created a rift between the plaintiffs and defendant nos.1 to 5 to his
advantage by secretly agreeing to give more benefits to the defendant
nos.1 to 5 though in law both brothers had equal rights. Defendant no.6
failed to perform the obligations casted upon him under agreement
dated 28/08/1983. It is pertinent to note that as per clause 15 of the
principal agreement, plaintiffs were to provide permanent
accommodation to these defendants on or before 01/12/1995. Whereas
the records reveal that till today the plans for construction of second
phase wherein plaintiffs and defendant no.1 to 5 were to be allotted the
permanent alternative accommodation, have not yet been submitted
obtaining the approval thereto from Planning Authorities. Similarly, the
temporary alternative accommodation which was to be provided to the
plaintiff and defendant no.1 to 5 in the first phase of construction have
been sold out to outsiders without the knowledge of plaintiff’s
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possession of the flats where in the plaintiffs were to be provided
temporary alternative accommodation (i.e. building in the first phase)
was handed over to the prospective buyers at midnight without
knowledge of the plaintiffs.
11. Para no.g(c) of plaint of suit No.1275/1996 stets that on receipt
of said correspondence defendant no.6 in collusion with defendant
nos.1 to 6 after about 8 years filed Suit No.724/1992, in the Hon’ble
High Court of Judicature at Bombay O.S. against the plaintiff and
defendant nos.1 to 5 for specific performance of the agreement dated
28/08/1983 and for other substantial reliefs.
12. Para9(d) of plaint of Suit no.1275/1996 states that since no
documentary alternative accommodation was provided, the dwelling
house was not vacated not only by the plaintiff but also by defendant
nos.1 to 5. On the contrary, despite defendant nos.1 to 5 making
written request for allotment of temporary alternative accommodation
in PhaseA to defendant no.6 later failed to provide the same, hereto
annexed and marked EXh.F is the copy of letter dated Nil 1992
purportedly written by advocate of defendant nos.1 to 5 to defendant
no.6.
13. It is contended that defendant nos.6 to 10 of this suit had filed
their written statement dated 18/06/1992 in present suit. Defendant
nos.1 to 5 had thereafter also filed their written statement dated
24/01/1994. Original defendant no.6 had expired and plaintiff
therefore, took out Chamber Summons No.993/2008 for bringing on
record the legal heirs of deceased defendant no.6. Vide order dated
17/01/2009 passed by the Court, defendant no.6(a) was brought on
record as the legal heir and legal representative of original defendant
no.6. Subsequently, defendant no.6(a) to 10 had also formally
tendered the written statement dated 18/11/2009 before Prothonotary
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and Sr.Master of Hon’ble High Court, Bombay as the suit was pending
that time before Hon’ble High Court. However, said written statement
was not taken on record and the certain objections were raised by the
office of Prothonotary and Sr.Master of High Court, Bombay. It is
contended that in or about June, 2012 this suit was transferred from
Hon’ble High Court to City Civil Court, Mumbai. Defendant nos.6(a) to
10 had also taken out Chamber Summons No.1213/2014 for
condonation of delay caused in filing their written statement dated
18/11/2009. Plaintiff objected said written statement being taken on
record. By the order dated 30/10/2014 this Court rejected Chamber
Summons for taking on record the written statement of defendant
nos.6(a) to 10. The Court has further framed the issues in the matter
on 22/07/2015. Thereafter, on 29/08/2015 plaintiff filed his affidavit
of examination in chief along with compilation of documents.
Thereafter, defendant nos.6(a) to 10 had filed say on the compilation of
the documents in respect of admission and denial of those documents.
Thereafter on 15/09/2015 the Court has exhibited certain documents to
read in evidence. Plaintiff has also referred para nos.23, 24, 25 and 26
of the plaint of this suit.
14. It is pointed out that defendant nos.6 to 10 in paragraph nos.1
and 11 in their written statement dated 18/06/1992 stated that with
reference to paras 1 to 4 of the plaint the contents are substantially
correct and with reference to para23, 24, 25 and 26 the defendants say
that they are ready and willing to perform their part of agreement they
are suffering loss without any fault or mistake and any malafide
intention on their part. Defendant further say there is no question of
issuing mandatory injunction against these defendants as they are
always ready and willing to vacate at any moment and shift to the
accommodation to the provided by the plaintiff.
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15. It is contended that defendant nos.6(a) to 10 in or about March,
2016 filed Civil Writ No.15803/2016 before Hon’ble High Court,
Bombay challenging the order dated 30/11/2014 passed by this Court
rejecting Chamber Summons No.1213/2014. Vide order dated
14/06/2017 Hon’ble High Court while setting aside the order dated
30/10/2014 passed by this Court by observing that “Firstly, written
statement of defendant nos.7 to 10 is already on record and therefore,
this written statement which is filed is to be considered as exclusively as
exclusively submitted by defendant nos.6(a) i.e. petitioner no.2 and that
effect, defendant no.2 is directed to make verification within period of
two days. (b) Secondly, there is delay of one and half years in filing this
writ petition. The suit is pending since 1992, hence petitioner no.2 i.e.
defendant no.6(a) is directed to pay the costs of Rs.10,000/ to the
original plaintiff within a period of two weeks.
16. It is pointed out that in view of above order passed by Hon’ble
High court, written statement dated 18/11/2009 is now only
considered as written statement for defendant no.6(a) and the written
statement dated 04/11/1996 continues on behalf of defendant nos.7 to
10. Defendant no.6(a) in her written statement dated 18/11/2009
paragraph nos.6 and 8 has stated that...
“6. These defendants deny that any agreement dated 28/08/1983
was executed by defendant no.6. The power of attorney Exh.C
to the plaint refers to different agreement not the suit agreement
annexed as Exh.B to the plaint. The agreement referred in power
of attorney was not executed by defences defendant no.6. The
suit agreement and the power of attorney are got up concocted
and fabricated, forged documents and as such not binding on
these defendants….”
“8. These defendants say and submit that agreement dated
24/08/1983 and suit power of atrorney are not executed by
deceased defendant no.6 and not properly stamped and
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registered hence not enforceable on law and cannot be acted
upon so the suit be dismissed.”
17. It is contended that original defendant no.6 in his written
statement dated 18/06/1992 admitted in several paragraph i.e. 1,3, 7
and 11 about existence and execution of agreement and submitting his
readiness and willingness to perform his part of said agreement.
Defendant no.6(a) being legal heir and representative of original
defendant no.6 have stepped into the shoes of original defendant no.6
as per due process of law. Defendant no.6(a) as to the best of her
knowledge falsely denied in paragraph 8 of her written statement dated
18/1/2009, the existence and execution of agreement and power of
attorney both dated 28/08/1983 and 09/03/1984 respectively.
Defendant no.6(a) has now tried to take a contrary and inconsistent
stand deviating from averments made by deceased defendant no.6 and
defendant nos.7 to 10 in their written statement dated 18/06/1992.
18. It is contended that plaintiffs had taken out notice of motion
no.4029/2015 for decree on admission under Order12 Rule6 of CPC
as against defendant nos.7 to 10. Meantime plaintiff and defendant
Nos.3 and 5 (defendant nos.1, 2 and 4 have expired) filed consent
terms dated 08/01/2019 agreeing to pas consent decree for specific
performance of said agreement dated 28/08/1983 in terms of said
consent terms dated 08/01/2019 in view of written statement filed by
defendant nos.1 to 5 in the original suit and without referring to the
consent term filed between plaintiff and defendant nos.3 and 5 on
08/01/2019, by an order dated 10/01/2019 said notice of motion
NO.4029/2015 was rejected.
19. It is contended that plaintiff completed PhaseI of the project and
handed over the flats to respective purchasers who had formed co
operative housing society. In or about 18/11/2018 said Society applied
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for deemed conveyance for the plot of land admeasuring 1015
sq.meters. There still existed an old bungalow occupied by Gokhale’s as
such full potential of the land is not utilized and second building
originally possessed by plaintiff developer was not constructed, in view
of non cooperation by defendants. In or about 18/03/2013 District
Dy.Registrar Cooperative Society issued certificate of deemed
conveyance in favour of Gurukul Cooperative Housing Society for
543.58 sq.meters of land owned by Gokhale’s. Plaintiff filed writ
petition NO.6495/2013 challenging said order passed by District
Dy.Registrar Cooperative Societies in respect of deem conveyance.
Thereafter, by order dted 12/08/2015 passed by Hon’ble High Court
said Writ Petition NO.6495/2013 came to be dismissed.
20. It is pointed out that defendant no.6(a) to 10 also filed writ
petition no.9598/2016 challenging order dated 18/03/2013 passed by
District Dy.Registrar of CoOperative Society. By an order dated
19/09/2016 passed by Hon’ble High Court said petition was adjourned
so as to enable defendant no.6(a) to 10 to take appropriate steps. The
defendant no.6(a) to 10 therefore, filed a Review Application
(no.28332/2016) for review of order dated 12/08/2015 passed in writ
petition no.6495/2015 along with C.A. NO.1444/2017 for condonation
of delay in filing review application. Said C.A. along with review
application was heard by Hon’ble High Court on 10/11/2017 and after
hearing the respective parties said C.A. along with review applications
were dismissed.
21. It is contended that in view of defendant nos.7 to 10 having
admitted agreement dated 28/08/1983 in their written statement
according to plaintiff the matter stands only between plaintiff and
defendnt no.6(a) and defendant no.6(a) cannot take contrary and
inconsistent stand deviating from averments made by deceased original
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defendant o.6 in his written statement dated 18/06/1992. Plaintiff has
referred Order22 Rule2(2) of CPC which provides that “ Any person so
made a party may make any defence appropriate to his character as
legal representative of deceased defendant”.
22. It is contended that it is well settled that when a party to a suit
dies, his legal representative is substituted in order that suit might
proceed and a decision be arrived at. It is the original parties rights and
disability have to be considered and not those of legal representatives.
Defence not open to the defendant if alive, cannot be raised by his legal
representative in that character. According to plaintiff, a person
substituted as legal representative of deceased party must adopt the
pleadings filed by deceased party. He/she cannot raise new point
inconsistent with the pleadings of the deceased. The legal
representative of the deceased cannot set up his own claim or right in
the case though he may do so in other proceedings. That all that the
legal presentative can, therefore, do is to take up the suit at the stage it
was left when the original party dies and to continue it. Therefore, if
any defence to the suit was not open to deceased defendant, his legal
representative would not be at liberty to plead that defence. Hence,
according to plaintiff, the defence taken by defendant o.6(a) in her
written statement dated 18/11/2009 is necessary to be struck off.
23. Defendant no.6(a) has filed her affidavit of reply and resisted the
notice of motion contending that written statement of defendant
no.6(a) along with defendant nos.7 to 10 was filed on 18/11/2009.
Said written statement was accepted and considered as exclusively
submitted by defendant no.6(a) as per the order dated 14/06/2017
passed by Hon’ble High Court in writ No.10516/2016. Thereafter,
issues were framed in the suit and plaintiff has filed his affidavit along
admission of documents and those documents are exhibited thereafter
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this notice of motion is taken out by plaintiff on 06/08/2019 i.e. long
time gap of 10 years and according to defendant no.6(a) this notice of
motion is taken out only to delay the trial of this suit. Hence, according
to defendant no.6(a) this notice of motion is misconceived, bad in law
and suffers from latches and it is part of delay tactics. It is contended
that defendants at all relevant times are owners of suit property and
defendant no.6(a) is intending to rely upon the written statement dated
18/11/2009.
24. It is contended that said agreement dated 28/08/1983 is not
legal, valid, subsisting and enforceable document. It is alleged that
plaintiff is guilty of delay and latches on plaintiff’s part for not
performing plaintiff’s obligation and for failure of consideration, suit
agreement is rescinded and revoked by plaintiff or frustrated by the
conduct of plaintiff. It is alleged that plaintiff failed and neglected to
discharge plaintiff’s contractual obligations as per suit agreement. It is
denied that plaintiff negotiated with the tenants/ occupants occupied
diverse portion of suit structure standing on said property as alleged. It
is contended that first phase of development was completed by
constructing and independent, separate building in the suit property
and disposing of it in favour of third parties, plaintiff failed to perform
plaintiff’s further obligations and plaintiff did not start with
construction of second phase, without any cause and inspite of
readiness and willingness of defendant nos.6(a) to 10 to perform their
obligations and inspite of cooperation given by those defendants.
25. It is contended that plaintiff did not hand over a flat admeasuring
1000 sq.ft as transit accommodation in first building or flat of 1200
sq.ft. as permanent alternate accommodation by 01/12/1985 to
defendant no.6(a) to 10 and as such according to defendant no.6(a)
plaintiff made breach of contractual obligations scrupulously. It is
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denied that through out said period plaintiff was ready and wiliness to
commenced development of second phase. It is alleged that in course
of correspondence plaintiff never averred permanent or transit alternate
accommodation to defendant no.6(a) to 10 as agreed along with
demand of consideration. Defendant no.6(a) has specifically contended
that the agreement referred in power of attorney dated 09/03/1984
was not executed by defendant no.6. The suit agreement dated
20/08/1983 and power of attorney dated 09/03/1984, according to
defendant no.6(a) are got up concocted, fabricated and forged
document. Therefore, they are not binding upon defendant no.6(a).
26. It is contended that Suit no.2182/1985 was filed by defendant
no.6 to 10 against plaintiff of this suit, defendant nos.1 to 5 of this suit
and BMC for directions to carry out necessary repairs and construction
on second floor of suit property of plaintiff. It is contended that
defendant no.6(a) had expanded substantial sum for maintenance of
bungalow and constructed new stair case for second floor residents as
plaintiff included to maintain it through out, though agreed under the
terms of suit agreement. Therefore, according to defendant no.6(a)
herself and defendant nos.7 to 10 exercise their right as owner of suit
property independently and filed said suit in City Civil Court, Mumbai
against BMC and others for mandatory order and decree along with in
terms of orders of repairs/ construction of new stair case. Plaintiff of
this suit did not file any reply nor contested said suit and accepted
ownership right of defendant nos.6(a) to 10. It is alleged that pleadings
of this notice of motion are misleading as there is no relation or
connection of suit No.2182/1995 with this suit and prayers of both suits
are different.
27. It is contended that suit No.1275/1996 was filed by defendant
nos.1 to 5 against plaintiffs and defendant nos.6 to 10 for an order and
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injunction thereby restraining defendants of said suit from dealing with
and disposing off or creating third party rights in suit property along
with other reliefs prayed in said suit. BMC was not a party to said suit
as alleged and as such according to defendant no.6(a) is misleading the
Court because proceedings of Suit No.1275/1996 have no concern with
this suit and prayers of both the suits are different. It is contended that
defendant no.6(a) is intending to rely upon written statement dated
18/11/2009 and averments made in written statement of deceased
defendant o.6 which was filed in the Court on 18/06/1992 are not
accepted and binding upon defendant no.6(a).
28. It is contended that written statement of defendant no.6(a) was
filed on 18/11/2009 and it is considered as the written statement
exclusively filed by defendant no.6(a). It is defendant no.6(a) being
legal heir and representative of deceased defendant no.6 was stepping
into shoes of said original defendant as per due process of law. It is
denied that she has falsely denied in para8 of her written statement,
the existence and execution of agreement and power of attorney. It is
also denied that defendant no.6(a) tried to take contrary and
inconsistent stand deviating from averments made by defendant no.6 in
his written statement dated 18/06/1992. It is contended that any
inconsistent and contrary statements, averments in written statement of
deceased defendant no.65 are not accepted and they are not binding
upon defendant no.6(a). It is contended that suit agreement
immediately signed by deceased defendant no.6 as Karta and Manager
of HUF and is not binding upon defendant no.6(a) as there was no
necessity to dispose off or deal with HUF property. It is contended that
notice of Motion no.4029 of 2015 taken out by plaintiff to pass decree
on admission against defendant no.7 to 10 on the basis of admission in
written statement, was dismissed on 10/01/2019. It is contended that
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consent terms dated 01/01/2019 filed between plaintiff and defendant
nos.3 to 5 are not binding upon defendant nos.6(a) to 10, those consent
terms have no relevancy in the matter. It is denied that the various
proceedings are referred in notice of motion. It is contended that
defendant no.10 was minor in 1983 and he is not rectified suit
agreement after attaining majority and defendant o.9 is present Karta
and Manager of HUF. Defendant no.6(a) is one of the coparceners of
HUF and defendant nos.6(a) to 10 are not agreeable to the terms of suit
agreement and therefore, suit agreement is not enforceable against any
of the defendants. It is contended that plaintiff has not impleaded all
the legal heirs and representatives as the party in the suit. Defendant
no.6(a) is the married daughter of defendant no.6 and she is
impleaded in this suit on 07/01/2009 and therefore, she is entitled to
file her written statement independently she is a coparcener and not
just legal heir of defendant o.6. After filing written statement in
November, 2009, issues were framed, affidavit of examination in chief
of plaintiff was filed with documents, his documents were also exhibited
and written statement of defendant no.6(a) to 10 was considered as
exclusive submitted by defendant no.6(a) thereafter. This notice of
motion is taken out on 06/08/2019 i.e. after long gap of 10 years.
Hence, according to defendant no.6(a) this notice of motion taken out
only to delay the trial of the suit. It is alleged that plaintiff is intending
only to delay the proceedings by filing frivolous application and plaintiff
does not want to step into witness box because main partner of plaintiff
namely Avinash Bal who has filed examination in chief has settled at
UAE from 1989 and he has accepted citizenship of UAE in January,
1992. Said Mr.Bal is also carrying on business of eating house under
the name and style as Fresh Chose Restaurant in Dubai. Since filing of
affidavit of evidence said witness has not appeared in Court for
examination in chief. Hence, according to defendant no.6(a) the notice
of motion is necessary to be dismissed.
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29. Plaintiff’s C.A. has filed affidavit of rejoinder to the reply of
defendant no.6(a) and denied all the contentions raised in the said
reply.
30. Heard plaintiff's advocate Mr.Parekh and perused the written
notes of arguments filed on record on behalf of defendant nos.6(a) and
7 to 10. Plaintiff's advocate Mr.Parekh argued that defendant no.6(a)
has filed her written statement and raised contrary defence to the
defence raised by original defendant no.6, husband and father of
defendant nos.6(a) to 10. According to plaintiff's advocate defence
raised by defendant no.6(a) being contrary to the defence raised by
original defendant no.6 said defence of defendant no.6(a) is necessary
to be strucked off as contrary defences are not permissible. It is further
submitted that one advocate cannot represent defendant no.6A(a) and
defendant nos.7 to 10 because those defendants have raised defences
contrary to each other. Hence according to plaintiff's advocate, NM is
necessary to be made absolute. It is pertinent to note here that
advocate A.L.Gore for defendant nos.3 and 5 submitted that those
defendants are not intending to file reply to this NM because defendant
nos.3 and 5 have already filed consent terms with plaintiff and those
defendants also intend to support plaintiff fort continuation of
development of suit property. It was argued on behalf of plaintiff that
defendant no.6(a) has filed written statement contrary to the written
statement of defendant nos.6 to 10 and defendant nos.7 to 10 have not
filed their reply to NM, hence they cannot argue the NM. It is pointed
out that advocate Mr.Joshi was representing defendant nos.6 to 10,
however as defendant no.6(a) has taken different stands now advocate
Mr.Joshi cannot represent defendant no.6(a) and defendant nos.7 to 10
together. Thereafter, directions were given to advocate Mr.Joshi to
clarify as to how he can represent the defendant who have taken
contrary stand against each other. Thereafter written notes of
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arguments in respectively of NM are filed by advocate Mr.Bharat Joshi
on behalf of defendant nos.6(a) and 7 to 10.
31. Advocate for defendant nos.6(a) to 10 has mentioned in his
written notes of arguments that plaintiff took out this NM for striking
out defendant no.6(a) raised in the written statement dated
18/11/2009. It is argued that the allegations in the affidavit filed by
C.A. of plaintiff in support of NM shows that plaintiff has contended
that defendant no.6(a) cannot take defence contrary to the alleged
admissions given by original defendant no.6 in the written statement
dated 18/06/1992.
32. Advocate for defendant nos.6(a) to 10 has referred Rule 16 of
Order 6 of CPC which empowers the Court to strike out the pleadings…
“OrderVI, Rule16. Striking out pleadings:
The Court may at any stage of the proceedings order to be struck
out or amended ay matter in any pleading—
(a) which may be unnecessary scandalous, frivolous or vexatious,
or
(b) which may tend to prejudice, embarrass or delay the fair trial
of the suit, or
(c ) which is otherwise an abuse of the process of the Court.”
33. Advocate for defendant nos.6(a) to 10 has argued that the
affidavit of plaintiff's C.A. is not referring any of the above grounds
under Order6 Rule16 of CPC. Further, this Court by the order dated
30/10/2014 passed in Chamber Summons No.1213/2014 had rejected
to accept said written statement on the ground of delay. Said order was
challenged in Writ Petition No.10516 of 2016 by defendant no.6(a) and
Hon'ble High Court ordered to take on record written statement of
defendant no.6(a) therefore, written statement of defendant no.6(a)
was accepted as per the order dated 14th June, 2017 passed by the
Honb'le H.C. in above referred writ petition. In said Writ Petition
plaintiff herein were heard by Hon'ble High Court and the objections to
written statement taken now in this NM were argued before the Hon'ble
High Court. The Hon'ble High Court in para no.3 of its order recorded
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submissions of plaintiff and rejected them by allowing the written
statement of defendant no.6(a). Hon'ble High Court did not put any
condition on the contents of written statement. It is argued that issue
sought to be adjudicated in this NM is already decided by Hon'ble High
Court, hence according to advocate for defendant nos.6 (a) to 10
suffers of resjudicata and it is not maintainable.
34. It is argued that defendant no.6(a) was not joined as one of the
legal heir when original defendant no.6 Mr.Arvind Sitaram Gokhale
expired in the year, 1998 and defendant no.6(a) was joined as
defendant in the year, 2009 in her personal capacity and as heir of
deceased defendant no.6. Defendant no.6(a) was not joined in the suit
as coparceners of HUF as others were joined in the year, 1992 and
hence according to advocate for defendant nos.69a) to 10 the written
statement filed by defendant nos.6(a) to 10 has no bearing on the
defences raised by defendant no.6(a) who joined the suit in the year,
2009 in her personal capacity. It is further argued that defendant
no.6(a) in her independent right as coparceners of HUF of Arvind
Sitaram Gokhale has a right and interest to take her independent. stand
of defences raised in her written statement. Hence, according to
defendant nos.6(a) to 10 the NM taken out by plaintiff is frivolous and
it is deliberately filed with intention to delay the trial and to avoid
crossexamination of plaintiff's partner. It is argued that the stand
taken by plaintiff in NM is not supported by law of facts.
35. It is pointed out that similar NM No.4029 of 2015 was taken out
by plaintiff to grant decree or admission against defendant nos.6 to 10,
however said NM was dismissed by this Court by the order dated 10th
January, 2019. It is further contended that the judgment of Hon'ble
Supreme Court passed in Civil Appeal No.55 of 2010 in the matter of
A.Razzak V/s. Mangesh Wagale supports the case of defendant no.6(a).
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In said judgment it is clearly held that no defences can be struck off
without adverting to Order6 Rule 16 of CPC.
36. Advocate Mr.Joshi for defendant no.6(a) cited following cases;
i) Kizhiakalathil PUthan Veettil Thavazhi Karnavan and
Manager Choroti Amma’s Son, Go[alan Nair V/s. Manikat
Variath Ukkali Varissiar’s son Snkunni Variar and Others,
Second Appeal No.496 of 1930 dated 2nd August, 1934,
wherein it is observed that…
“I can find nowhere in the judgment any discussion about the
question of consideration; in the Subordinate Judge’s judgment
there is not a word about consideration, but the question of
necessity is discussed. Hoever, the argument adduced is to my
mind fallacious. The 15th defendant was not a party to the
original suit as framed and as mentioned above, in the suit the 1st
plaintiff supported the 2nd plaintiff and the melcharth, and
according to the Full Bench decision, if the lease was otherwise
proper, he was the only person who was entitled to avoid it, he
being the sthani alive at the time when the previous demise
expired. On his death during the trial the 15th defendant came in
as his legal representative and it is clear that he came in no other
capacity whatever. He did not come in as a general member of
the sthanam. That being so, he was not at liberty to depart from
or contradict the position taken up by that person in the suit
whose legal representative he was. If he had any independent
right as a member of the sthanam under which he could impeach
the melcharth as being an improper one, then he should have
asked to come in that capacity, either with or without assuming
the capacity of legal representative of the 1st plaintiff. A party
who comes into the suit as the legal representative of another
party cannot be allowed to depart from or vary or contradict the
attitude taken up by the p[arty whose legal representative he is; it
is obvious that if he were permitted to do so, it would be
impossible to conduct any litigation where legal representatives
come in. The present case affords an excellent illustration where
two successive legal representatives of a party (1st plaintiff) have
sought to take up positions directly contradictory to that of their
predecessor in law. If that is allowed who can know what the 1st
plaintiff’s case is? Therefore, the 15th defendant was not at liberty
as the legal representative of the 1st plaintiff in the suit to depart
from the position of the 1st plaintiff in the suit to depart from
the position of the 1st plaintiff. It is not disputed that the lessee
cannot question the validity of the melcharth granted by his
lessor. The learned Subordinate Judge has sought to get over this
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difficulty by saying that the 15th defendant passed his right to
question the validity of the melcharth to 2nd defendant by
granting a melcharth to the 2nd defendant. As I have pointed out,
the only capacity in which the 15th defendant could have objected
to the melcharth EXh.B would have been as an ordinary member
of the sthanam. I am extremely doubtful whether that right
which inhered in him personally could possibly be passed on a
stranger. It is sufficient to say, as I have remarked above, that he
was not a party to the suit in his capacity as a member of the
sthanam. He cam on the record as the legal representative of the
1st plaintiff the sthani and therefore could not object to the lease
in that capacity. Seeing that he was not at liberty to depart from
the position of the 1st plaintiff in the suit, still less could he pass
on the power of objecting to it to the 2nd defendant. …”
ii) Bal Kishan V/s. Om Parkash and Another,
(1986)4 Supreme Court Cases 155 wherein it is observed that…
“3. Order 22 Rule 4 of the Code of Civil Procedure, 1908 provides
that where one of two or more defendants dies and the right to
sue does not survive against the surviving defendant or
defendants alone, or a sole defendant or sole surviving defendant
dies and the right to sue survives, the court, on an application
made in that behalf, shall cause the legal representative of the
deceased defendant to be made a party and shall proceed with
the suit. Since the action in this case related to property, the right
to sue did survive and the Rent Controller was right in bringing
the legal representative of the deceased Musadi Lal on
record. Subrule (2) of Rule 4 Order 22 authorises any person
who is brought on record as the legal representative of a
defendant to make any defence appropriate to his character as
legal representative of the deceased defendant. The said subrule
authorises the legal representative of a deceased defendant or
respondent to file an additional written statement or statement of
objections raising all pleas which the deceased tenant had or
could have raised except those which were personal to the
deceased defendant or respondent. In the instant case Bal Kishan,
the appellant could not have, therefore, in the capacity of the
legal representative of the deceased respondent Musadi Lal who
was admittedly a tenant, raised the plea that he was in possession
of the building as a trespasser and the petition for eviction was
not maintainable. It is true that it is possible for the court in an
appropriate case to implead the heirs of a deceased defendant in
their personal capacity also in addition to bringing them on
record as legal representatives of the deceased defendant
avoiding thereby a separate suit for a decision on the independent
title as observed in Jagdish Chander Chatterjee v. Sri Kishan 1972
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2 SCC 461 The relevant part of that decision at page 854 reads
thus: (SCC pp. 4645, para 10)
“Under subclause (ii) of Rule 4 of Order 22 of the Civil
Procedure Code any person so made a party as a legal
representative of the deceased, respondent was entitled to
make any defence appropriate to his character as legal
representative of the deceasedrespondent. In other words,
the heirs and the legal representatives could urge all
contentions which the deceased could have urged except
only those which were personal to the deceased. Indeed
this does not prevent the legal representatives from setting
up also their own independent title, in which case there
could be no objection to the court impleading them not
merely as the legal representatives of the deceased but also
in their personal capacity avoiding thereby a separate suit
for a decision on the independent title.”
iii) Nilkanth s/o Pandurang Wath and others V/s. Amarkanth s/o
Pandurang Wath (dead) through Legal Heirs (i) and (ii)
Kaushalyabai wd/o Amarkanth Wath and others,
2016(6) Mh.L.J. 46 wherein it is observed that…
“2. The petitioners are the original plaintiffs who had filed
Spl.C.S.No.38/1995 for partition and separate possession of the
suit property. In the plaint it was their case that they had legal
right to the property in question. In the suit Amarkanth s/o
Pandurang Wath was shown as defendant No.1 while Pandurang
Wath was arrayed as defendant No.2. During pendency of the
suit, the defendant No.1 expired on 19/09/2014 after which his
widow and son were brought on record as defendant
Nos.1(i) and (ii). The defendant No.1(ii) filed an application
below Exhibit179 seeking permission to file his written statement
on record. It was stated that after service of the notice, the case
was fixed on 23/04/2015 for filing the written statement. It was
then adjourned to 29/04/2015. There was some confusion with
regard to the adjourned date and hence the written statement
could not be filed on said date. It was further stated that the
written statement was Prepared on 30/04/2015 and was sought
to be placed on record on 04/07/2015. This application was
opposed by the plaintiffs. The trial Court by The impugned order
allowed the said application.”
37. I have given serious consideration to the submissions made on
behalf of the parties. Admittedly, original defendant no.6 in his written
statement filed in 1992 has admitted disputed agreement, however
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defendant no.6(a) who is LR of original defendant no.6 is intending to
challenge said agreement by raising the defence different than of
original defendant no.6. In the written notes of arguments filed on
behalf of defendant no.6(a) to 10 it is submitted that the grounds
raised in this NM were raised before Hon'ble High court in Writ Petition
No.10516 of 2016 and those grounds are considered by Hon'ble High
Court. Not only it, advocate for defendant no.6 has pointed out that in
para no.3 of the order passed by Hon'ble High Court in Writ
No.10516/2016 the arguments advanced by plaintiff are referred. Para
no.3 of the order passed by Hon'ble High Court in Writ Petition
no.10516/2016 is as under;
“3. Respondent no.1/ original plaintiff had filed he suit for
specific performance against the petitioners, who are the original
defendants/ owners of the land. Earlier, defendant no.6(a), who
is present petitioner no.2 was not a party to the proceedings, but
in the year, 2009 she was joinder as a legal heir and accordingly,
she was taken on record in June, 2009. She had filed the
additional Written Statement in November, 2009 along with
other petitioners i.e. original defendant nos.7 to 10. No order
was passed on the said Written Statement. Suit no.724 of 1992
was pending before the High Court and subsequenhtly, the said
suit was transferred to City Civil Court, Mumbai and numbered
as Suit No.8582 of 1992. The said Suit was transferred from
Bombay High Court to City Civil Court in the year, 2011 due to
extension of pecuniary jurisdiction. From 2009 to 2011, no order
was passed as the onbjection in respect of the application for
condonation of delay was not filed along with the written
statement. After noticing this, the learned Judge of the City Civil
Court directed petitioner no.2 i.e. original defendant no.6(a) to
take out proper proceeding. Interalia, defendant no.6(a) along
with the application for condonation of delay in Chamber
Summons. Respondent no.1 i.e. original plaintiff opposed this
application on various grounds including jurisdiction, explanation
regarding delay and no contradictory stand can be taken in the
written statement when earlier written statement filed by
defendant nos.7 to 10. After hearing both the sides, the learned
Judge, City Civil Court, Greater Mumbai was pleaded to reject the
Chamber Summons by order dated 30/0/2014. Hence, this Writ
Petition.”
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38. It becomes clear that grounds raised in this NM were not raised
by plaintiff in the Writ Petition filed before Hon'ble High Court. It is
submitted on behalf of defendant no.6(a) to 7 that grounds under
order6 Rule16 of CPC are not made out for stricking of defence of
defendant no.6(a). Order6 Rule16(B) provides that Court can strike
off matter in any pleading which may tend to prejudice, embarrass or
delay the fair trial of the suit. Defendant no.6(a) admittedly the legal
heir of deceased original defendant no.6. Hence, defendant no.6(a) has
stepped into shoes of original defendant no.6 and therefore, she is
bound by the defence raised by original defendant no.6 and she cannot
take contrary defence to the defence raised by original defendant no.6.
If she will be permitted to raise such contrary defence definitely it will
cause prejudice to plaintiff's and unnecessary evidence about the
contrary defence raised by defendant no.6(a) will come on record
which may cause delay in the disposal of this suit which is already
pending for about last 28 years, I find that prayer made by plaintiff in
prayer clause (a) of NM can be granted as provided by Order6 Rule
16(V) of CPC and it cannot be said that plaintiff's contentions are not
supported by any provision of law. Hence, I find that NM is necessary to
be made absolute. Therefore, I proceed to pass following order.
ORDER
NM No.3002 of 2019 in Suit No.8582 of 1992 (H.C.Suit No.724/1992)
is hereby made absolute in terms of prayer clause (a) of the NM.
Sd/
(K.P.NANDEDKAR)
19/08/2020 JUDGE,
CITY CIVIL COURT, MUMBAI.
Dictated on : 09/03/2020 & 19/08/08/2020
Transcribed on : 19/08/2020
Signed by HHJ on : 03/09/2020
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGEMENT/ORDER”
UPLOAD DATE TIME NAME OF STENOGRAPHER
DICTATED ON DAIS
COMPUTER
Name of the Judge Hhj shri K.P. Nandedkar
Date of Pronouncement of
Judgement/Order.
19/08/2020
Judgement/order signed by P.O on 03/09/2020
Judgement/order uploaded on 15/09/2020
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