Final Order 1

Order Details: Notice of Motion
Pdf Text: NM 3352/19 SUM.SUIT 435/2018 1
IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
NOTICE OF MOTION NO.3232 OF 2019
(CNR NO.: MHCC010088252019)
IN
SUMMARY SUIT NO. 435 OF 2018
Miss Babusha Champshi Shah ...Applicant
IN THE MATTER OF
Mrs. Kesar Lalji Shah … Plaintiff
Versus
Ms. Kanchi Manish Shah and anr. ….Defendants
Appearances:
Advocate Shaila Taware for the Applicant.
Advocate Neeta V. Parikh for the Defendants.
CORAM : HIS HONOUR JUDGE
SHRI.M.S.LONE
(C.R.NO.28)
DATE : 05th OCTOBER 2019
ORDER
This Notice of motion is for expunging the remark, passed by
this court on 15.06.2018 which is as under:
A lady who is present with ld. Counsel for plaintiff is addressing to
the court. On inquiry with the Ld. Counsel Shri K.K. Sonawane and adv.
Mrs. Yashoda Jondhale appearing for plaintiff they informed that she is
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Ms. Babusha Shah. The Ld. Advocate informed that they have told 100
times to her not speak in the court. They are there to look after the case of
the plaintiff. The lady is moving her head and hand towards the court.
The lady now pointed that the plaintiff is her maternal aunt”.
2. Before proceeding further it is necessary to note down the
essential facts of this case. The summary suit is filed by Mrs. Kesar Lalji
Shah against defendants for the recovery of the Rs.30,00,000/ with
interest. The applicant is the constituted attorney of the plaintiff. The
defendants had filed their appearance. The summons for the judgment
is filed by plaintiff. The defendants had filed leave to defend. The
unconditional leave to defend was granted to defendants vide order
dated 03.11.2018. Defendants had filed their written statements and
issues are framed. On 15.06.2018 the above remarks were made by my
ld. Brother Judge. The applicant had filed criminal writ petition
no.4733 of 2018 against that adverse remarks before the Hon'ble High
Court of Bombay. The Hon'ble High Court of Bombay vide order dated
11.07.2019 disposed of that writ petition with directions to applicant to
filed appropriate proceeding against that remarks.
3. From the material on record following points come for my
determination and my findings with reasons are as follows:
POINTS FINDINGS
1.Whether there is sufficient cause
to expunge the remark of this court
made against the applicant on
15.06.18?
Yes
2. What order ? As per final order
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REASONS
AS TO POINT NOS.1 &2.
4. The Ld. counsel for applicant has submitted that applicant is
young women engaged in the business of the fashion designing. The
plaintiff is her aunt. The applicant has been awarded various
certificates and awards due to her social work. The adverse remarks are
unjustified and has caused mental agony to applicant. The remarks
were unnecessary and therefore should be expunged.
5. To support his arguments Ld. counsel for applicant had relied on
copies of various acknowledgement certificates and awards given to
applicant by various institutions including MMC, copy of roznama dated
15.06.2018, copy of order passed by Hon'ble High Court of Bombay in
Criminal Writ Petition No.4733 of 2018, and relied on Awani Kumar
Upadhyay Vs. The Hon'ble High Court of Judicature at Allahabad and
Ors, Civil Appeal No. 13401341 of 2013 and State of Madhya Pradesh
and ors Vs. Nandlal Jaiswal and Ors, 1987 AIR 251.
5. The Ld. counsel for defendants has resisted this application by
filling reply and submitted that the present notice of motion is not
maintainable. The applicant is in habit of making gestures against the
court. The court has rightly observed the conduct of the applicant and it
was noted down. Hence, application may be rejected. To support her
arguments ld. Advocate has relied on the copy of roznama of the case
filed before the Ld. Judicial Magistrate First Class, Gujarat.
6. The applicant is indeed a young lady. The copies of
acknowledgements and awards show that she has done some
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remarkable work in social field. The remarks passed by my Ld. Brother
Judge on 15.06.2018 seems to be unwarranted as on that date the stage
was just for appearance of the defendants. The remarks are also not
useful for any determination of disputes or facts before the court. In
Awani Kumar Upadhyay (Supra) the Hon'ble Supreme Court was
dealing of the facts about the severe strictures passed against the
appellant which was going to affect his reputation. In that case
appellant was Chief Judicial Magistrate. The Hon'ble Supreme Court
observed that “ We, once again, reiterate that harsh or disparaging
remarks are not to be made against judicial officers and authorities whose
conduct comes into consideration before courts of law unless it is really for
the decision of the case as an integral part thereof.” It is most respectfully
submitted that this authority is not applicable to the present case as in
this case the applicant is not government servant.
7. In State of Madhya Pradesh and Ors. (Supra) the Hon'ble Supreme
Court was dealing with the case of license under the Madhya Pradesh
Excise Act, 1950. The Hon'ble Supreme Court observed that, “We may
observe in conclusion that Judges should not use strong and carping
language while criticising the conduct of parties or their witnesses. They
must act with sobriety, moderation and restraint. They must have the
humility to recognise that they are not infallible and any harsh and
disparaging strictures passed by them against any party may be mistaken
and unjustified and if so, they may do considerable harm and mischief and
result in injustice. Here, in the present case, the observations made and
strictures passed by BM, Lal, J. were totally unjustified and unwarranted
and they ought not to have been made”. It is most respectfully submitted
that this authority is not applicable to the present case as the facts are
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different.
8. The Ld Counsel for the defendants to support her argument has
relied on the copy of roznama of the court of Ld. Judicial Magistrate
First Class, Gujarat. In that roznama certain observations are made by
the Ld. Judicial Magistrate First Class against the present applicant.
This court cannot go into question about that observations. The record
shows that the applicant and defendants are indulge in various
litigations which are contested by them with tooth and nails. At certain
times parties in the court atmosphere cannot control their emotions and
this result in the passing of adverse remarks by the court. In this case
the remarks under consideration are not helpful in any nature to decide
any question of facts. It seems that in the presence of her advocate the
applicant was trying to address the Court. The conduct of applicant is
against the provisions of Order III of the Code of Civil Procedure 1908.
Even then a fair chance has to be given to the applicant as after passing
of such remarks till date the applicant has not indulge in any aggressive
conduct before the court. Therefore, point Nos. 1 is answered as 'Yes'
and following order is passed.
ORDER
1. Notice of Motion No.3232/2019 stands allowed with cost.
2. The remarks which are stated by my Ld. Brother Judge on
15.06.2018 stands expunged and they shall not be read as a part of
record anymore, subject to condition that the applicant shall control her
emotions and shall not try to address the court in presence of her
advocate.
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3. Notice of Motion No.3232/2019 stands disposed of accordingly.
(M.S.LONE)
Judge,
Date: 05/10/2019 City Civil Court,Gr. Bombay
Dictated on : 05/10/2019
Transcribed on : 05/10/2019
Signed on : 07/10/2019
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
07/10/2019 at 5.40p.m. Mr. A. S. Sugdare
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.)
HHJ Shri.M.S.Lone
(C.R.NO.28)
Date of pronouncement of
Judgment/Order
05/10/2019
Judgment/Order signed by P.O. on 07/10/2019
Judgment/Order uploaded on 07/10/2019
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