Final Order 1

Order Details: Notice of Motion
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IN THE COURT OF CITY CIVIL COURT AT GR.BOMBAY
NOTICE OF MOTION NO.3345 OF 2019
IN
SUIT NO.7538 OF 1981
Shree Saurashtra Patel Samaj
A Public Charitable Trust ..Plaintiff
Versus
1. Gijubhai Dhanjibhai Patel and ors
..Defendants
Adv. Ankur Shah for plaintiff.
Adv. Mr. Hira for deft. nos.1, 3 and 5.
Adv. Mr. Tejas Shah for deft. nos.10 to 12.
CORAM: HIS HONOUR JUDGE SHRI M.SALMAN AZMI
DATE: 04/12/2019
ORAL ORDER
1. This notice of motion is tendered by defendant
nos.10 and 11 for taking additional written statement
on record.
2. Heard.
3. Ld. Counsel for the defendants submitted that the
defendants aggrieved by the order dated 04/10/2018
in chamber summons no.1082/2018 have filed the
writ petition No.7168/2018 before the Hon'ble High
Court. The Predecessor of this Court proceeded
without written statement of the defendants on
03/12/2018. The defendants further submitted that
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after hearing the Ld. Counsel for the defendants,
Hon'ble Bombay High Court was pleased to permit
the defendant nos.10 and 11 to withdraw the said
Civil Writ Petition, however keeping open all
contentions raised by them in the said Civil Writ
Petition. The defendants submitted that defendants
wish to file the additional written statement on the
basis of additional pleadings taken by the plaintiff by
way of amendment in the plaint and prayed for
condonation of delay and for setting aside the order.
4. Ld. Counsel for the plaintiffs opposed the notice of
motion. He pointed out that merely filing of the writ
petition by the defendants is not be the ground to file
the additional written statement, at this stage when
there was no stay granted. He would submit that on
04/10/2018, the Predecessor of this Court allowed
the chamber summons No.1082/2018. On
22/10/2018, this Court permitted the defendants to
file their additional written statement to the
amended plaint. The matter was fixed on
03/11/2018 for additional written statement. Again
it was adjourned to 28/11/2018 for filing additional
written statement. On 28/11/2018, order was
passed for proceeding with no additional written
statement of the defendants. The defendant nos.1 to
6, 8 and 9 have failed to file additional written
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statement and the matter was proceeded for
evidence. Thereafter, on 03/12/2018 the order was
passed to proceed without additional written
statement of defendant nos.10 to 12. On
06/12/2018, the matter was for the evidence of the
plaintiff and subsequently it was adjourned to
12/12/2018. Ld. Counsel for the plaintiffs argued
that writ petition was filed by the defendants after
passing of no written statement order and therefore
it does not lie in the mouth of the defendants that
they were serious about challenging the order in
chamber summons no.1082/2018. Hence, prayed for
rejecting the notice of motion.
5. He further argued that this Court has no power to set
aside the order dated 13/12/2018 unless the fraud is
pointed out. In support of his contention, he has
placed reliance upon the following judgments:
1. Indian Bank V/s Satyam Fibres(India)
Pvt.Ltd of Hon'ble Apex Court, (1996) 5 Supreme
Court Cases 550, wherein the Hon'ble Apex Court
held that, “The judiciary in India also possesses
inherent power, specially under Section 151 of CPC, to
recall its judgment or order if it is obtained by fraud on
court. In the case of fraud on a party to the suit or
proceedings, the court may direct the affected party to
file a separate suit for setting aside the decree obtained
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by fraud. Inherent powers are powers which are
resident in all courts, especially of superior jurisdiction.
These powers spring not from legislation but from the
nature and the constitution of the tribunals or courts
themselves so as to enable them to maintain their
dignity, secure obedience to its process and rules,
protects its officers from indignity and wrong and to
punish unseemly behaviour. This power is necessary
for the orderly administration of the court's business.”
2.Budhia Swain and others V/s Gopinath Deb and
others of Hon'ble Supreme Court, (1999) 4
Supreme Court Cases 396
3.Rameshkumar Agarwal V/s Rajmala Exports
Private Limited and others of Hon'ble Supreme
Court, (2012) 5 Supreme Court Cases 337
6. The Hon'ble Apex Court has laid down the criteria for
recalling of the order. No doubt the order can be
recalled by the same Court when the order is
obtained by playing fraud upon the court and playing
mischief which prejudiced the parties. Here the order
was passed to proceed without additional written
statement of the plaintiff. The order was not passed
on the basis of any effective hearing and on merits of
any application or in the proceedings which is
required to be recalled set aside only on the basis of
criteria laid down in the above cited judgment. Here
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in this case, defendant nos.10 and 11 failed to file
written statement within a particular time, therefore
they were proceeded without additional written
statement. The order was not on merits of the
matter and therefore the criteria set out for recalling
it in the above cited judgment would not be the
criteria for considering the present nature of order.
The Court can exhaust inherent power to permit
defendant nos.10 to 12 to file their written statement
in the interest of justice as substantial rights of the
parties are involved. No prejudice would be caused
to the plaintiffs. It would be in the interest of justice
if the matter is decided on merits. There would not
be any hyper technical or pedantic approach for
deciding such type notice of motion. The defendant
nos.10 and 11 have made out the case for taking
written statement on record. Hence, it is expedient to
pass following order:
ORDER
1.N/M no.3345/19 is made absolute in
terms of prayer clause (a) and (b).
2. The additional written statement of deft.
nos.10 and 11 is taken on record.
3. Cost in the cause.
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4. N/M no.3345/19 is disposed off
accordingly.
04/12/2019 M.SALMAN AZMI
CITY CIVIL COURT,
GR.MUMBAI.
Dictated on : 04/12/2019
Transcribed on : 18/12/2019
Signed on : 20/01/2020
'CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”.
24/01/2020 at 4.00 pm.
MRS.T.C.KAMBLE
Name of the Judge HHJ SHRI M.S.AZMI, CR NO.1
Date of Pronouncement of
judgment/order
04/12/2019
Judgment and order signed by P.O. 20/01/2020
Judgment/order uploaded on 24/01/2020
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