Final Order 1

Order Details: Notice of Motion
Pdf Text: N/M No.3070/2019 ..1.. Suit No.2807/2018
CNR No.MHCC010083982019
IN THE BOMBAY CITY CIVIL COURT FOR GREATER BOMBAY
CONTEMPT NOTICE OF MOTION NO.3070 OF 2019
IN
NOTICE OF MOTION NO.4215 OF 2018
IN
SUIT NO. 2807 OF 2018
Alka Ashok Singh .. Plaintiff
Versus
Jyoti Ramesh Singh .. Defendant
And
Jyoti Ramesh Singh .. Contemnor
Mr. B. P. Shukla, advocate for plaintiff
Mr. H. S. Rajeshirke, advocate for defendant/contemnor
CORAM : M. T. ASIM, J
COURT ROOM NO.02
DATED : 12th December, 2019
ORAL ORDER
Notice of motion is taken out by plaintiff making prayer that
defendant/contemnor be sent to civil imprisonment for a period of
three months and/or for a period as this court may deem fit and proper
and impose penalty for committing contempt/willful disobedience of
order dated 31.10.2018 passed by this court and be held guilty of
contempt for willfully, knowingly and deliberately dispossessing and
taking forcible possession of suit premises from the plaintiff without
following due process of law.
It is further prayed that defendant/contemnor be directed to
restore possession of plaintiff and to appoint court Receiver under
Order 40 Rule 1 of CPC to preserve the status of suit premises and
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plaintiff may be appointed as an agent of the court Receiver without
any royalty and security.
It is further prayed that pending hearing and disposal of suit
defendant be restrained by an order of this court from creating third
party interest in suit premises.
2. It is the contention of plaintiff that she has filed suit against the
defendant/contemnor for the reliefs as particularly set out the plaint.
She has taken out notice of motion No.4215 of 2018 and moved for an
adinterim relief on 31.10.2018. Despite service of notice of motion and
plaint upon defendant; none appeared on her behalf. After hearing
advocate for the plaintiff this court passed an order on 31.10.2018
directing defendant not to disturb the possession of plaintiff till next
date i.e. 17.11.2018. While passing the said order this Court held
plaintiff’s possession over suit premises. This order was communicated
to defendant/contemnor. Defendant/contemnor is well aware about
the said order passed by this court. Thereafter defendant/contemnor
appeared in the suit and filed her reply to notice of motion and was
aware of the order of the court. During pendency of suit and operation
of adinterim order when plaintiff was out of Mumbai from 25.07.2019
to 30.07.2019, defendant/ contemnor broke opened the lock of suit
premises and inducted her son Vivek Ramesh Singh in the suit premises
illegally and in willful disobedience of the Court's order.
3. Defendant/contemnor intentionally violated order of this Court.
Plaintiff after getting knowledge about taking forcible possession of suit
premises by defendant/contemnor, addressed letter dated 01.08.2019
to her stating all the facts and calling upon her to hand over vacant and
peaceful possession of suit premises to her. She also addressed letter
dated 01.08.2019 through her advocate to local police station
requesting to take necessary action.
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4. It is further contended that plaintiff was in settled possession of
suit premises since long back and her possession was also protected by
this court and therefore, she is entitled to get back possession of suit
premises and occupy the same as she was occupying prior to illegal
dispossession and Court Receiver Bombay High Court be appointed with
all powers and amenities under order 40 rule 1 of CPC to take
possession of the suit premises and she may be appointed as agent of
the Court Receiver on the terms and conditions as this court thinks fit
and proper.
5. It is further contended that defendant/contemnor has violated
order dated 31.10.2018 willfully, knowingly and deliberately and thus,
committed contempt of this Court and is guilty of contempt of this
Court. Defendant/contemnor has no regard or respect of this court so
she is liable to be sent to Civil imprisonment for a period of three
months. It is further contended that she has strong and reasonable
apprehension that defendant can do anything including creation of
thirdparty rights in order to defeat the claim made by her in the suit
premises and she may be deprived of her legitimate right, title and
interest in the suit premises. So, she has sought direction against the
defendant/contemnor to restore her possession of suit premises. She
further contended that no loss or hardship or prejudice would be caused
to defendant/contemnor if relief sought is granted. Accordingly, she
prayed in above terms.
6. Defendant/contemnor filed reply to present notice of motion.
She denied that plaintiff was in possession of suit premises. She also
denied that during pendency of suit and operation of adinterim order,
when plaintiff was out of Mumbai between 25.07.2019 to 30.07.2019,
she has broken opened the lock of suit premises and inducted her son
Vivek Singh in the suit premises in willful disobedience of the court's
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order. It is contended that plaintiff has not approached with clean
hands and has suppressed material facts. Defendant has filed reply to
the notice of motion taken out by the plaintiff and recorded true and
correct position in respect of present matter and requested to treat
submissions in the reply an additional reply made by her as part and
parcel of present reply.
7. I have gone through reply filed by defendant to the notice of
motion No.4215 of 2018. It is contended that plaintiff has no right and
title in the suit premises. Mother of plaintiff and defendant was owner
of suit premises and she executed gift dated 18.09.2017 in favour of her
son Vivek in respect of suit premises. There are two electricity meters
provided in suit premises, out of which plaintiff got transferred one
meter connection in her name fraudulently. Despite that, her son Vivek
Sing used to make payment in respect to the said meter. Other
electricity meter which was standing in the name of her mother was
transferred in the name of her son Vivek Singh. Payment towards
electricity bills have been made by her son. Plaintiff has concocted story
of her alleged possession of suit premises. Possession of suit premises
exclusively lies with her son Vivek. Relying on contention made in reply
to present notice of motion and also in reply to earlier notice of motion
No.4215 of 2018 she prayed for dismissal of present notice of motion.
8. Plaintiff filed rejoinder to the reply of defendant and denied the
contention of defendant. It is contended that contemnor was well aware
about the order passed by this court and intentionally and knowingly
violated order of this court by taking forcible possession of suit
premises. It is further contended that if the contemnor has any
grievance against the order passed by this court, she could have
challenged the said order before Hon'ble High Court or she could have
taken out proper application for vacation of order. However, without
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approaching to the concerned court seeking appropriate remedy,
defendant/contemnor has intentionally and knowingly flouted the order
of this Court. Accordingly, it is prayed that notice of motion be allowed.
9. Perused notice of motion, affidavit in support of it, reply of
defendant, rejoinder of plaintiff and record and proceeding in present
suit. Heard respective counsel for parties. They advanced their
argument as per respective contention of parties.
10. In view of rival contentions of parties following points arise for
my determination and I have recorded my findings to the same with
reasons to follow as under:
POINTS FINDINGS
1. Whether plaintiff proves that defendant willfully
disobeyed the order dated 31.10.2018 passed by this
Court?
…No.
2. Whether plaintiff has got prima facie case? …No.
3. Whether plaintiff will suffer irreparable loss if
temporary injunction as sought is not granted?
…No.
4. Whether balance of convenience lies in favour of
plaintiff?
…No.
5. Whether plaintiff proves that it is just and
convenient to appoint Court Receiver in relation to
suit premises and she is entitled to any other relief?
…No.
6. What order? As per Final
Order
REASONS
As to point Nos.1 to 5
11. I would like to mention that advocate for plaintiff and defendant
submitted that their respective party does not want to adduce evidence
in relation to contempt notice of motion. Therefore, present contempt
notice of motion has been posted for hearing.
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12. At the outset, I would like to mention that my learned
Predecessor has passed an order on 31.10.2018 directing defendant not
to disturb the possession of plaintiff over the suit premises till next date.
Said order was continued from time to time. It was in existence even
during the period from 25.07.2019 to 30.07.2019. In the suit defendant
appeared through Advocate Sachin Usalkar. Defendant has also filed
her reply to the notice of motion No.4215 of 2018 on 25.03.2019. It
can be gathered that defendant has knowledge of the passing of order
dated 31.10.2018 when she participated in the proceeding through her
advocate. However, she never prayed for vacation of said order. May it
be so, now I consider present notice of motion in view of rival
contentions of parties.
13. I would like to mention that defendant in her reply to present
notice of motion has specifically denied that during pendency of suit
and operation of adinterim order, when plaintiff was out of Mumbai
between 25.07.2019 to 30.07.2019, she broke opened the lock of suit
premises and inducted her son Vivek Singh in the suit premises in
willful disobedience of the court's order. Although plaintiff claimed that
she came to know about said fact on inquiry with neighbours when she
returned to Mumbai on 30.07.2019. When defendant has specifically
denied that she broke opened the lock of suit premises and inducted her
son Vivek Singh in suit premises and she in her reply to notice of
motion No.4215 of 2018 has categorically contended that her son is in
exclusive possession of suit premises then plaintiff ought to have filed
affidavit of neighbours who she claimed to have disclosed to her about
breaking opened lock of suit premises by the defendant and inducting
her son in the suit premises. But she has not filed affidavit of neighbour
in support of her contempt notice of motion. As per the plaintiff she was
not present at the time of alleged incident and account of alleged
incident was given to her by neighbours so her statement on affirmation
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about alleged incident is hearsay. In absence of affidavit of neighbour in
relation to the incident prima facie her statement on affirmation cannot
be considered. Thus, plaintiff has not brought prima facie credible
material to show that defendant has inducted her son into suit
premises. Further, son of defendant is neither party to the suit nor to
present contempt notice of motion. More so, there is no material to
show that order dated 31.10.2018 was also served upon son of
defendant. Therefore, I hold that plaintiff has failed to prove that
defendant has willfully disobeyed the order dated 31.10.2018 passed by
this court. Hence, I answer point No.1 in negative.
14. Plaintiff has also sought relief of restraining defendant from
creating third party right/interest in relation to suit premises. When
defendant has come with the case that suit premises was gifted by her
mother to her son Vivek Singh then question of creating third party
right by defendant does not arise. Apprehension of the plaintiff in that
respect is not well founded. Therefore, I hold that plaintiff has not made
out prima facie case for grant of relief in terms of prayer clause (b1). So
also balance of convenience does not lie in her favour in relation to said
relief. More so she also failed to prove that she will suffer irreparable
loss if relief sought is refused. Hence, I answer point Nos.2 to 4 in
negative.
15. Plaintiff has also sought relief of restoration of possession of suit
premises and appointment of court receiver in relation to suit premises.
Learned advocate for plaintiff has placed reliance upon authorities in
the cases of Deepak Eknath Dhavan Vs. Anwar Faramosh Khan and
another 2004 Supp 2 Bom CR 928, Meghji Jetha Shah Vs. Kalyanji
Nanji Shah 1988 (1) Bom C.R. 263, Khushnuma Ibrahim Khan and
another Vs. Asadullah Khan alias Sameer Khan and others, 2012 0
Supreme (Mah) 1921 in support of his submissions. Those authorities
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are not of assistance to the plaintiff in the facts of present matter
because admittedly son of defendant is in possession of suit premises
who is not party to the present suit and notice of motion. It is not
appropriate to consider .prayers in terms of prayer clause (b) behind
back of son of defendant who is not party defendant to the suit.
Therefore, plaintiff is not entitled for reliefs in that regard. Hence, I
answer point No.5 in negative.
In view of my findings to point Nos.1 to 5 in negative I hold that
contempt notice of motion deserves to be dismissed. Hence, pass
following order.
ORDER
Contempt Notice of Motion No.3070 of 2019 stands dismissed and
disposed off accordingly.
(M. T. Asim)
Judge
Date : 12.12.2019 Gr. Bombay
Typed on : 12.12.2019
HHJ signed on :
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
13.12.2019
UPLOAD DATE AND TIME Mrs. S. P. Pawar
NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.)
H.H.J. Shri. M. T. Asim
C.R.No.02
Date of Pronouncement of
JUDGMENT/ORDER
12.12.2019
JUDGMENT/ORDER signed by P.O.
on
13.12.2019
JUDGMENT/ORDER uploaded on 13.12.2019
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