Final Order 1

Order Details: Notice of Motion
Pdf Text: N/M No.3391/2019 ..1.. Suit No.7363/2006
CNR No.MHCC010092732019
IN THE BOMBAY CITY CIVIL COURT FOR GREATER BOMBAY
NOTICE OF MOTION NO. 3391 OF 2019
IN
SUIT NO.7363 OF 2006
Bhavarilal Chotmal Bohra (since deceased)
Mrs. Sumitra B. Bohra (since deceased)
Ashok B. Bohra and others .. Plaintiffs
Versus
Sunanda Parmeshwar Shetty and another .. Defendants
Mr. S. R. Jaiswal, advocate for plaintiffs
Mr. R. M. Bhandari, advocate for defendants
CORAM : M. T. ASIM, J
COURT ROOM NO.02
DATED : 11th December, 2019
ORAL ORDER
Notice of motion is taken out by plaintiffs making prayer that
defendants be directed to pay them a sum of Rs.70,000/ per month
towards conducting charges and/or compensatory charges from July
2019 till the date of disposal of suit. They also prayed for appointment
of court commissioner to visit suit hotel and report to this Court as to
what type of hotel business is being run from the suit hotel premises.
2. It is the contention of plaintiff that they have filed the suit
against the defendants interalia seeking declaration that they are
trespassers in respect of suit and business premises and for decree of
eviction. They further contended that defendants were lastly to pay
sum of Rs.12,000/ as and by way of conducting charges from October,
1995. However, they failed to pay said conducting charges. Plaintiffs
have taken out notice of motion bearing No.160 of 2007 before Hon'ble
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High Court when present suit was pending before the said court. In the
said notice of motion an order was passed on 23.11.2007 whereby
defendants were directed to pay to the plaintiffs a sum of Rs.10,000/
per month. Defendants are paying conducting charges @ Rs.10,000/
till date. Though a period of 12 years has passed, the conducting
charges remained the same as was being paid in the 2007. During last
12 years, the business of hotel being carried on by the defendants have
also risen several folds but monthly compensation remained the same.
The other hotels in the locality being Hotel Bajrang, having an area of
about 700 square feet which is just after leaving one shop is paying
Rs.60,000/ per month as and by way of monthly compensation.
Another hotel in the locality being Junction Hotel also having an area of
about 700 square feet which is around 100 feet away from the suit hotel
is also paying Rs.60,000/ per month as and by way of monthly
compensation. Area of suit hotel is around 850 square feet and it is
stone throw distance from Cotton Green railway station. In these
circumstances plaintiffs have prayed that defendants be directed to pay
monthly compensation to them @ Rs.70,000/.
3. It is further contended that as on date defendant No.2 who
earlier used to run hotel business, does not require the same for his
personal use and business as he has unlawfully sublet said hotel
premises to some third party and removed the entire furniture and
fixtures of the main hotel area. He has practically converted the same
into Godown full of gunny bags of cereals and vegetable. Third party is
only cooking food in kitchen and supply the same to hospitals. Said
third party is giving to defendant No.2 sum of Rs.60,000/ per month as
and by way of monthly compensation. He has violated clause 10 of
agreement dated 15.07.1983 and clause 2 of agreement dated
22.10.1985. In light of these contentions plaintiffs have made prayers
in above terms.
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4. Defendants denied the allegations made by plaintiffs. They
opposed notice of motion mainly on the count that they are running the
business of hotel with great hardship and on hand to mouth basis. It is
contended that present notice of motion is taken out by plaintiffs to
pressurize them to vacate suit hotel business by raising exorbitant
conducting charges. It is further contended that trial in the above
matter has already commenced and plaintiffs have already closed their
evidence. Thereafter these defendants have filed their affidavit of
examination in chief on 23.07.2019 and now matter has been kept for
admission and denial of documents. Plaintiffs have also filed their say
to the documents filed by these defendants. In these set of facts instead
of prosecuting matter on merits plaintiffs adopt delaying tactics for the
reasons best known to them and have taken out present notice of
motion. They denied specifically that Junction Hotel is situated in the
said area and also denied compensation being paid by conductor of
Hotel Bajrang and Junction Hotel. In light of these contentions they
prayed for dismissal of notice of motion.
5. Plaintiffs filed their rejoinder to the reply of defendants and
reiterated the facts mentioned in affidavit in support of notice of motion
and contended that suit hotel premises is being used as mess for
preparing food and supplying to the hospital. They denied contention of
defendants and contended that it is bigger lie of defendant No.2 that his
income from hotel is hardly Rs.30,000/. Accordingly prayed for
allowing notice of motion.
6. Defendants filed surrejoinder to the rejoinder of plaintiffs. They
confirmed the averments made in reply to the notice of motion. They
denied that defendant No.2 is using suit hotel premises as a mess for
preparing food and supplying to hospital. They prayed for dismissal of
notice of motion.
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7. Perused notice of motion, affidavit in support of it, reply of
defendants, rejoinder of plaintiffs and sur rejoinder of defendants.
Heard respective counsel for parties.
8. At the outset it is not in dispute that Hon'ble High Court vide
order dated 23.11.2007 in notice of motion No.160 of 2007 directed
defendants to pay compensation at the rate of Rs.10,000/ per month to
the plaintiffs. It is also not in dispute that plaintiffs have taken out
notice of motion No.2829 of 2017 for directing defendants to comply
with the order passed in notice of motion No.160 of 2007 dated
23.11.2007. Said notice of motion was disposed off in view of
statement made by defendant No.2 that he will clear arrears and shall
make payment on 25th September, 2018. Plaintiffs have contended that
defendants are paying conducting charges @ Rs.10,000/ per month till
date. In view of these undisputed facts now, I consider present notice of
motion.
9. It is pertinent to note that in the present case issues have been
framed on 12.10.2015. Side of plaintiffs is already closed on
15.04.2019. Thereafter defendants have filed affidavit evidence vide
Exh.21 along with compilation of documents. Plaintiffs have also filed
their say to compilation of documents Exh.22. Thus, it is clear that only
side of defendants remained to be closed after their evidence is over.
Plaintiffs have taken out present notice of motion after filing affidavit of
evidence by the defendants. They have taken out present notice of
motion at such belated stage. It is pertinent to note that one of the
issues is, “Whether plaintiffs are entitled for damages/ compensation
from the defendants as claimed in the suit?” This issue is required to be
decided after considering the evidence adduced by the parties. That
being so, it is not appropriate at this stage to consider prayer of the
plaintiffs for directing defendants to pay to them Rs.70,000/ per month
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by way of compensation from July, 2019 till the date of decision of the
suit. This court is required to give findings on the point of entitlement
relating to the quantum of damages if any and same is to be adjudicated
after fullfledged trial. That being so when suit is at advanced stage it is
not proper to consider the prayer in terms of prayer clause A in present
notice of motion.
10. So far as relief in terms of prayer clause B is concerned;
plaintiffs have sought appointment of Court Commissioner to visit suit
hotel and to report as to what type of hotel business is being run from
the suit hotel premises. In my view, considering the issues raised in the
present suit it is not necessary to ascertain type of hotel business which
is being run from the suit hotel premises. In my view same will not be of
assistance to elucidate any matter in dispute. It is settled law that
commissioner cannot be appointed to collect the evidence. The purpose
of notice of motion is to collect evidence. That being so prayer for
appointment of commissioner cannot be considered. Even otherwise the
purpose for which appointment of commissioner is sought is not
necessary for just decision of controversies involved in the present
matter. Therefore, prayer in terms of prayer clause B also cannot be
granted. In light of discussion made above notice of motion deserves to
be dismissed. Hence, pass following order:
ORDER
Notice of Motion No.3391 of 2019 stands dismissed and disposed off
accordingly.
(M. T. Asim)
Judge
Date : 11.12.2019 Gr. Bombay
Typed on : 11.12.2019
HHJ signed on :
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
12.12.2019
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
11.12.2019
JUDGMENT/ORDER signed by P.O.
on
12.12.2019
JUDGMENT/ORDER uploaded on 12.12.2019
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
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
11.12.2019
JUDGMENT/ORDER signed by P.O.
on
12.12.2019
JUDGMENT/ORDER uploaded on
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