Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM 3465/19(Suit 1268/16)
MHCC010094452019
IN THE BOMBAY CITY CIVIL COURT, AT MUMBAI
NOTICE OF MOTION NO. 3465/2019
IN
S.C. SUIT NO.1268/2016
1. Aarti Bhavesh Shah
2. Pranali Bhavesh Shah ..Plaintiffs
V/s.
1. Dhirajbala Gambhirdas Shah
2. Rajeshkumar Gambhirdas Shah
3. Ketan Gambhirdas Shah
4. Vimalkant Jivanlal Shah
5. The Sanskar CHS Ltd.
6. M/s. Sandu Sanksar Building
Developers. ..Defendants
Appearance:-
Adv. Mr. R.R. Mishra for plaintiffs.
Adv. Mr. Mehta for defendant no.1 to 4.
CORAM : HHJ Shri V.V Vidwans.
C. R. No.03.
DATE : 13.3.2020
ORAL ORDER
1. Perused the Motion supported by an affidavit of Mrs. Aarti
Shah, plaintiff no.1 in the suit. I have also perused the affidavit in reply
filed by defendant no.2 Rajesh Kumar Shah.
2. I have heard oral submissions of Ld. Counsels for both
sides.
-- 1 of 5 --
2 NM 3465/19(Suit 1268/16)
3. Ld. Counsel for the plaintiffs has filed present Motion to
give directions to the defendant no.2 to deposit 1/4th share of the
amount of Rs.3,81,530/- i.e. Rs.77,382/- from the total amount
received from the redevelopment of the suit premises towards rent and
compensation from the defendant no.6 to the plaintiff, as described in
the schedule-1 with the Motion. Ld. Counsel for the plaintiffs has also
filed with the Motion a copy of order passed by this court dated
19.9.2017 vide Exh.A and affidavit of compliance of the said order by
the defendant no.2 vide Exh.B. The defendant no.2 in the affidavit in
reply has opposed the Motion.
3. It is the submission made by the Ld. Counsel for the
plaintiffs that, due to technical/ formal defect in the Motion and
supporting affidavit the plaintiff wants to withdraw the present Motion
and after removing the technical and formal defect, he wants to file
fresh Motion. Ld Counsel for the defendant no.2 has strongly opposed
the request for withdrawal of the present Motion on the ground that, if
there is any formal and technical defect in the Motion, it can be
corrected by the plaintiffs by taking out necessary chamber summons
for the amendment of the Motion and it is not necessary to withdraw
the same. Furthermore, Ld, Counsel for the defendant no.2 placed
reliance on the provisions of Order 23 Rule 1 of CPC, which provides for
withdrawal of suit or abandonment of part of claim, subject to certain
conditions. As per clause (3) of Order 23 of CPC, if court is satisfied
that a Suit must fail for the reasons of some formal defect, or there are
sufficient grounds for allowing the plaintiff to institute a fresh suit in
respect of the same subject matter of a suit or part of a claim, the Court
can grant liberty to the plaintiff to withdraw the suit or part of the
claim, with liberty to institute fresh suit in respect of same subject
-- 2 of 5 --
3 NM 3465/19(Suit 1268/16)
matter.
4. In this regard, Ld. counsel for the defendants no. 2 has
placed reliance on the authority of Hon’ble Andhra Pradesh High Court
in the case of Somaraju Chinnammi V/s. Samanthu Sivaji Ganesh and
Anr (2009 AIR (AP) 12). I have gone through the above authority and
find that in the said authority, the Hon’ble Andhra Pradesh High Court
has considered the above said provisions of Order 23 Rule (1) and (3)
of the CPC. In the said case, the plaintiff had sought permission to
withdraw the suit with a liberty to file fresh suit in respect of same
subject matter without specifying the formal defect or explaining nature
of formal defect. The term "formal defect" has been explained as a kind
of defect which does not affect the merit of the case. In this regard, it is
held that, the satisfaction of the court about nature of the formal defect
and sufficient reasons to allow the plaintiff to file fresh suit is the crux
of the matter. If the Court is satisfied that, the suit must fail for the
reasons of formal defect, then the plaintiff can be permitted to
withdraw the suit and file fresh suit as per liberty granted by the court.
5. In the present case, Ld. Counsel for the plaintiff has pointed
out that the formal defect in the present case is about the quantum of
the share and the calculation of the amount mentioned in the
supporting affidavit and prayer clause of the Motion, which needs to be
corrected. Instead of Rs.95,382.50 as 1/4th share, an amount of
Rs.77,382/- has been mentioned. It is the formal defect and therefore,
the plaintiffs are entitled to seek permission to withdraw the present
Motion and after removing the formal defect.
-- 3 of 5 --
4 NM 3465/19(Suit 1268/16)
6. I find that, the formal defect submitted and explained by
the Ld. Counsel for the plaintiffs is not affecting the merits of the case
and it is supported by the record of the case. Therefore, there is no
substance in the opposition of the defendant no.2 to grant permission
to the plaintiff to withdraw the Motion and file fresh Motion. The ratio
of the authority of the Hon'ble Andhra Pradesh High Court would not be
applicable in the present case because the formal defect has been
explained by the Ld.Counsel for the plaintiffs in the course of
submissions before the court and I am satisfied with the same. Hence, I
proceed to pass following order :-
ORDER
1. The oral request of Ld. counsel for plaintiff to withdraw
the present Motion is allowed with a liberty to file fresh
Motion subject to nominal costs of Rs. 1000/- to be paid
to defendant no.2 before next date.
2. If the above direction is complied with by the plaintiff
on or before next date, the notice of motion shall stand
disposed of as withdrawn with a liberty to file fresh
Motion.
Notice of Motion is disposed of accordingly.
(V.V. Vidwans)
Date: 13.3.2020 Judge, City Civil Court,
Gr. Bombay (C.R. 03)
Dictated on : 13.3.2020
Transcribed on : 14.3.2020
Draft given on 14.3.2020
Signed by HHJ on : 14.3.2020
-- 4 of 5 --
5 NM 3465/19(Suit 1268/16)
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED JUDGMENT/ ORDER.
UPLOADED ON : 16.3.2020
(NITIN V. UBALE)
SELECTION GR. STENOGRAPHER.
Name of the judge (with Court Room No.) Shri V.V. Vidwans, Judge, (C.R. 03)
Date of pronouncement of Judgment/ Order 13.3.2020
Judgment/ order signed by P.O on 14.3.2020
Judgment/ order uploaded on 16.3.2020
-- 5 of 5 --