Final Order 1

Order Details: Notice of Motion
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IN THE BOMBAY CITY CIVIL COURT FOR GREATER MUMBAI
NOTICE OF MOTION NO.3543 OF 2019
(CNR NO.MHCC010096362019)
IN
S. C. SUIT NO.473 OF 2014
Shri Keraba Jeevaba Gurav )..Plaintiff
V/s.
Shri Sadashiv Jeevaba Gurav ).. Defendant
Appearances :
Adv. Bhimrao A Powar for plaintiff.
Adv. Deepak D. Devkar for defendant.
CORAM : HIS HONOUR JUDGE
SHAIKH AKBAR SHAIKH JAFAR
COURT ROOM NO.03
DATE : 02/08/2022.
ORDER
1. This Notice of Motion is taken out by defendant for
recasting of issues. It is the contention of the defendant that he has
come out with specific defence against the claim of plaintiff and the
issues on the basis of his defence, have not been framed. Therefore, he
suggested issues in Para (10) of his notice of motion and prayed that
issues to be added as an additional issues.
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2. The plaintiff resisted the contention by filing Reply and
denied the contention defendant and issues already framed by the Court
are sufficient and issues claimed by defendant are not necessary. He
just taken out the notice of motion to prolong the proceeding and there
is no necessity to recall the issues and prayed for dismissal of the notice
of motion.
3. Heard rival parties. On going through the rival pleadings
of the parties, it reveals that Issues suggested by the defendant, are in
rebuttal of the contention of the plaintiff. The suggested Issue No.(a) is
relating to the cause of action. The plaintiff has specifically ascertained
the cause of action, hence, this issue is not necessary. The suggested
Issue No.(b) & (c ), are in rebuttal of Issue No.1, which is having
burden on the plaintiff to prove the title. Likewise, Issue (d), (e) & (g)
are relating to the possession. The same is also covered under Issue
No.2. Defendant may establish his contention by rebutting the
contention of the plaintiff relating to Issue No.2. The proposed issue
(h) is not relating to the final adjudication of the matter. Its leading to
the interim relief, consequently, need not to be framed.
4. So far as the Issue No.(f) is concerned, the plaintiff has
asserted in Para (11) in this regard. As per the provision of Sec.101 of
Evidence Act, the party who asserts, must prove. The Ld. Advocate for
the plaintiff have submitted that though the plaintiff has contended
regarding the purchase of house in the name of defendant at Navi
Mumbai but, it is not the subject matter, therefore, no need to frame
issue. However, pleadings of plaintiff show that he is claiming Gift
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Deed in his favour relating to the suit property and purchase of another
property by his father in the name of defendant. Therefore, the
pleading in Para (11) of his plaint is relevant and in support to establish
the title of plaintiff to the suit property by way of Gift Deed executed by
his father. Consequently, I am of the view that this issue deserves to be
framed as proposed. In the result, I proceed to pass the following
order :
ORDER
1. Notice of Motion No.3543/2019 in Suit
No.473/2014, is hereby partly allowed.
2. Proposed Issue (f) be framed as an additional
Issue as 2(a) at Exh.3.
3. Notice of Motion stands disposed off accordingly.
(Order dictated & pronounced in open Court)
(Shaikh Akbar Shaikh Jafar)
Judge,
City Civil Court, C.R. No.03
Dated : 02/08/2022 Greater Bombay
Dictated on : 02/08/2022
Typed on : 02/08/2022
Signed on :
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“Certified to be true and correct copy of the original signed order”.
05/08/2022 (Mrs. Vidya Abhijit Mande)
at about 06.00 p.m. Stenographer (GradeI.)
Court Room No.03, Gr. Mumbai
Name of the Hon'ble Judge : Shaikh Akbar Shaikh Jafar,
Judge, City Civil Court &
Addl. Sessions Judge
Court Room No.03, Gr. Mumbai
Date of pronouncement of Order : 02/08/2022
Order signed by Hon'ble Judge on : 04/08/2022
Order uploaded on : 05/08/2022
at about 06.00 p.m.
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