Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 N/M. 3115/19 in MA 83/17 (LCS 3933/84)
MHCC010084972019
IN THE BOMBAY CITY CIVIL COURT AT GREATER BOMBAY
NOTICE OF MOTION No.3115 OF 2019
IN
MISCELLANEOUS APPLICATION No.83/2017
IN
LONG CAUSE SUIT No.3933/1984
Premji Ratansi Gada
and others … Applicants in
M.A.No. 83/2017
and Org. plaintiffs
- Versus -
Hirji Keshavji Rangwala
and others ... Respondents in
M.A. No.83/2017
and Org. defendants
Appearance :-
Mr. R. D. Thorat, Advocate for Org. plaintiffs.
Mr. M. S. Londe, Advocate for Org. defendants.
CORAM : S. H. SALUNKHE,
AD-HOC JUDGE CITY CIVIL COURT,
COURT ROOM NO.4.
DATED : 17/10/2024.
O R D E R
. The defendants No.1 (a) and (b) have taken out present
Notice of Motion for initiating action of perjury against the plaintiff
No.1 Premji s/o. Ratansi Gada. (The parties are hereinafter referred to
as per their original status in suit for sake of convenience).
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2] It is contended that Miscellaneous Application No.83/2017
for mesne profit under Order-XX Rule-12 of The Code of Civil Procedure
(in short C. P. C.) has been filed by the plaintiffs, pursuant to liberty
granted by the Hon'ble High Court in Civil Application No.2177 Of 2011
In First Appeal No.1434 Of 2011. On or about 14/12/2016 the plaintiff
Premji Gada filed affidavit of evidence in Miscellaneous Application No.
83/2017 and in his cross-examination recorded on 20/2/2019 he
deposed that the plaintiffs No.3 and 4 are not alive. He further deposed
that the other plaintiffs have told him that they will accept whatever he
would do. He further deposed that after passing decree the plaintiffs
No.3 and 4 told him to file Miscellaneous Application. Thereafter he
deposed that the plaintiffs No.3 and 4 died before long back. Thereafter,
advocate for defendants gave notice to the plaintiffs No.1 to 4 to
produce death certificates and the details of legal representatives.
Accordingly, advocate for the plaintiffs informed that the plaintiff No.3
was expired on 1/2/2011 and No.4 was expired on 19/5/1996.
Advocate also forwarded copies of death certificates.
3] It is further stated that on perusal of said correspondence
and evidence of the plaintiff Premji Gada, recorded in Miscellaneous
Application No.83/2017, it clearly show beyond reasonable doubt that
the plaintiff Premji Gada has made a false statement on oath that the
plaintiffs No.3 and 4, who were died before passing of the decree in suit
on 10/2/2011 told him to file Miscellaneous Application for mesne
profit after suit was decreed. In the circumstances, the plaintiff is guilty
of making a false statement on oath knowing fully well that at the time
of passing of decree and filing of Miscellaneous Application for mesne
profit, plaintiffs No.3 and 4 were died. Therefore, plaintiff be
prosecuted for giving false evidence on oath for the offences punishable
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under Sections 191, 193, 199, 200 and 209 of The Indian Penal Code
(in short the I. P. C.).
4] Plaintiff Premji Gada filed reply on 23/3/2022. The sum
and substance of his reply is that he is studied upto 7th standard in
Gujarati medium and cannot read and write English script. The
statement made by him in cross-examination dated 20/2/2019 is due to
misunderstanding and confusion between Long Cause Suit No.
3933/1984 and Miscellaneous Application. Initial litigation between the
parties started before the Small Causes Court and the statement, more
particularly given by him in cross-examination dated 20/2/2019, was
due to confusion between permission as granted by other plaintiffs for
institution of present suit which was given in 1978-79 and not more
particularly, sought to be interpreted by defendants. It is further stated
that he is suffering from mild hearing problem and due to that
questions put by defendants were not properly heard by him and due to
said misunderstanding and/or confusion he unintentionally made
certain incorrect statement before the Court. It is further stated that on
the contrary, defendants have deliberately made false statement on oath
that they are not aware about said demise of plaintiffs No.3 and 4
making themselves liable for perjury. It is denied that plaintiff No.1 is
guilty of making false statement on oath for getting favourable order
and committed fraud upon the Court. It is further stated that he is
tendering unconditional apology, therefore, considering
misunderstanding and confusion between the original suit and
Miscellaneous Application, present Notice of Motion is not maintainable
and same may be dismissed.
5] Heard parties.
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6] Learned advocate for defendants submitted that suit has
been decreed and appeal against the judgment and decree is pending
before the Hon'ble High Court. It is further submitted that as per the
liberty granted by the Hon'ble High Court Miscellaneous Application, for
mesne profit has been filed by the plaintiffs and in the said proceeding
plaintiff Premji Gada filed evidence affidavit and in the cross-
examination he made false statement on oath that plaintiffs No.3 and 4
told him to file application for mesne profit after passing decree fully
knowing that they both are died before passing decree in Long Cause
Suit No.3933/1984. It is further submitted that in spite of having
knowledge about the death of plaintiffs No.3 and 4 much prior to
passing decree in suit plaintiff Premji Gada has made false statement on
oath that the plaintiffs No.3 and 4 have told him to file Miscellaneous
Application. It is further submitted that evidence has been recorded as
per statement made by the witness before the Court and hence it cannot
be said that there was any confusion in the mind of witness. He further
submitted that the plaintiff has no respect towards the Court and he
knowingly made false statement on oath in order to obtain order in
Miscellaneous Application. Therefore, action under Sections 191, 193,
199, 200 and 209 of the I. P. C. be initiated against the plaintiff for
making false statement on oath in the Court proceeding and complaint
be made to the Court having jurisdiction to take cognizance of offence.
7]
Per contra, learned advocate for plaintiffs submitted that
the plaintiff No.1 is a senior citizen and suit has been filed in 1984 for
specific performance by his father. Suit has been decreed and the
defendants have challenged the decree. It is further submitted that
defendants have filed various applications, including abatement of
proceedings, which has been rejected by this Court. The defendants are
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delaying the proceedings of Miscellaneous Application. It is further
submitted that there was some confusion in the mind of the plaintiff as
to suit and Miscellaneous Application and, therefore, the witness under
confusion made this statement and there was no intention to make false
statement on oath. Therefore, it would not be justifiable to initiate
action. On the basis of these submissions, he prayed for dismissal of
Notice of Motion.
8] Present Notice of Motion has been taken out for initiating
prosecution against plaintiff Premji Gada for the offences punishable
under Section 191, 193, 199, 200 and 209 of the I. P. C. for giving false
statement on oath in Miscellaneous Application No.83/2017. The
provisions of Section 195 (1) (b) (i) of The Code of Criminal Procedure
(in short the Cr. P. C.) provides that no Court shall take cognizance of
any offence punishable under Sections 193 to 196, 199, 200, 205 to 211
and 228 of the I. P. C., when such offence is alleged to have been
committed in, or in relation to, any proceeding in any Court except
upon complaint in writing of the Court or by such officer of the Court as
that Court may authorize. Section 340 of the Cr. P. C. provides the
procedure in cases mentioned in Section 195 of the Cr. P. C. Section 340
of the Cr. P. C. provides that when upon an application or otherwise, any
Court is of opinion that it is expedient in the interest of justice that an
enquiry should be made into any offence referred to in clause (b) of
sub-section (1) of Section 195 of the Cr. P. C. which appears to have
been committed in or in relation to a proceeding in that Court or in
respect of document produced or given in evidence in a proceeding in
that Court, such Court may after such preliminary inquiry record
finding to that effect and make complaint thereto in writing and sent it
to the Magistrate of First Class having jurisdiction. Thus, as per the
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provisions of Section 340 of the Cr. P. C. the Court has to make
Preliminary Enquiry and record finding whether there is
prima facie
material and sufficient ground to order prosecution for the offences
referred to clause (b) of sub-section (1) of Section 195 of the Cr. P. C.
9] In the case at hand, it is contended by the defendants that
plaintiff No.1 Premji Gada made false statement on oath in
Miscellaneous Application No.83/2017 and thereby he has committed
offence punishable under Sections 191, 193, 199, 200 and 208 of the
I.P.C.
10] In a recent judgment of James Kunjwal Versus State of
Uttarakhand & Anr. [SLP (Cri.) No.9783/2023] the Hon'ble Apex Court
held that before ordering prosecution Court has to take into
consideration following facts :-
“
(i) The Court should be of the prima facie opinion that there exists
sufficient and reasonable ground to initiate proceedings against
the person who has allegedly made a false statement (s) ;
(ii) Such proceedings should be initiated when doing the same is
“expedient in the interests of justice to punish the delinquent”
and not merely because of inaccuracy in statements that may be
innocent/immaterial ;
(iii) There should be “deliberate falsehood on a matter of
substance” ;
(iv) The Court should be satisfied that there is a reasonable
foundation for the charge, with distinct evidence and not mere
suspicion ;
(v) Proceedings should be initiated in exceptional circumstances, for
instance, when a party has perjured themselves to beneficial
orders from the Court.”
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11] In the light of above legal position, now it is to be seen
whether there is sufficient and reasonable ground to initiate
proceedings against plaintiff Premji Gada, for making false statement on
oath. In the case at hand, there is allegation that the plaintiff has made
a false statement on oath. It is not disputed that plaintiff Premji Gada
filed evidence affidavit in Miscellaneous Application No.83/2017 and in
cross-examination recorded on 20/2/2019 he deposed that after passing
of decree in Suit No.3933/1984 plaintiff No.3 Ramesh Ratansi Gada
and No.4 Smt. Hiraben Ratansi Gada told him to file Miscellaneous
Application for mesne profit. It appears from the copies of death
certificates annexed to Notice of Motion that Hiraben Ratansi Gada died
on 19/5/1996 and Ramesh Ratansi Gada died on 1/2/2011 i.e. much
prior to passing of decree in Long Cause Suit No.3933/1984. Thus, it
appears that in spite of having knowledge of death of plaintiffs No.3
and 4, Premji Gada plaintiff No.1, made false statement that they both
have told him to file Miscellaneous Application for mesne profit. This
shows that in the cross-examination recorded on oath on 20/2/2019
plaintiff Premji Gada made false statement that plaintiffs No.3 and 4
told him to file Miscellaneous Application No.83/2017 after passing of
decree in suit. Thus, the material on record clearly shows that in spite of
having knowledge of deaths of plaintiffs No.3 and 4 before passing
decree in suit, plaintiff Premji Gada made false statement on oath that
plaintiffs No.3 and 4 have told him to file Miscellaneous Application.
12] Giving of false statement on oath and/or filing false
evidence before the Court is an evil and same must be carved with iron
hands by initiating prosecution for perjury. It is also well settled that the
prosecution for perjury should be sanctioned only in those cases where
perjury appears to be deliberate and conscious and conviction is
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reasonably probable and likely. It is also well settled that prosecution
should be ordered when it is considered expedient in the interest of
justice to punish delinquent and not merely because there is some
inaccuracy in the statement which may be innocent or immaterial. In
the case at hand, the statement made by plaintiff Premji Gada is cannot
be said to be innocent. He must be having knowledge of death of
plaintiffs No.3 and 4 and in spite of that he has deliberately made false
statement on oath. In my view, there is sufficient material on record to
initiate prosecution against him for offence punishable under Section
193 of the I. P. C., for giving false evidence on oath. Therefore, it is
expedient in the interest of justice to initiate prosecution against him.
13] Defendants further prayed that plaintiff Premji Gada be
prosecuted for the offences punishable under Sections 199, 200 and
209 of the I. P. C. However, Sections 199 of the I. P. C. provides that
whoever made false statement in declaration which is receivable as
evidence is liable for punishment under Section 200 of the I. P. C.
provides punishment for using such declaration knowing it to be false or
use such declaration as evidence. In the case at hand, it is not case of
defendants that plaintiff Premji Gada made any false statement in
declaration or used it. Further, Section 209 of the I. P. C. can be
attracted when fraudulent or dishonest claim is made in the Court,
which the person making knows to be false. In the case at hand, there is
no allegation that plaintiff Premji Gada has made false claim. Thus,
there is no sufficient material or ground for initiating prosecution for
offences punishable under Sections 199, 200 and 209 of the I. P. C.
14] As discussed above, there is
prima facie sufficient material
on record to initiate proceeding against plaintiff Premji Gada for the
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offence punishable under Section 193 of the I. P. C. for giving false
evidence on oath in the Court proceeding. Hence I pass following the
order :-
O R D E R
1] Notice of Motion is hereby made absolute in following terms :-
a) Mrs. B. B. Gawade, Assistant Registrar, Board Department
of this Court is hereby directed to file complaint against plaintiff
namely Premji s/o. Ratansi Gada, herein, for an offence
punishable under Section 193 of The Indian Penal Code in the
Court of learned Metropolitan Magistrate having jurisdiction,
b) Necessary documents for filing complaint be supplied to the
concerned officer,
c) A copy of this order be forwarded to the concerned
Assistant Registrar for further compliance.
Date : 17/10/2024. ( S. H. SALUNKHE )
Ad-hoc Judge City Civil Court,
Court Room No.4, Gr. Mumbai.
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED ORDER.”
21/10/2024 03:20 p. m. V. V. Kulkarni
NAME OF STENOGRAPHERUPLOAD DATE TIME
Name of the Judge (With Court
Room No.)
H. H. Judge Shri. S. H. Salunkhe,
Court Room No. 4.
Date of Pronouncement of ORDER 17/10/2024
ORDER Typed on 18/10 and 19/10/2024
ORDER signed by P.O. on 21/10/2024
ORDER uploaded on 21/10/2024
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