Final Order 1

Order Details: Other
Pdf Text: 26.09.2019
SU 3146/11
CORAM: H. H. J. SHRI.M.T.ASIM (CR. NO. 02)
Adv. Thakar for plaintiff present.
Adv. Kishori Kelkar for defendants present.
She filed draft Notice of Motion t.o.r.
O Leave is granted to register it.
Copy is given to other side.
KB
LO
Adv. Thakar for Plaintiff present.
Adv. Kishori Kelkar for defendants present.
Say filed by advocate for plaintiff on draft notice of motion itself.
Heard respective counsel for parties.
ORDER BELOW DRAFT NOTICE OF MOTION.
Draft notice of motion is taken out by defendants to frame additional issues as suggested
in prayer clause (A). It is contended that certain important issues remained to be framed.
It is further contended that plaintiff never visited suit premises either during the lifetime of
said Roshan Dastur and or at any time even after her death and he has never been in
possession of suit premises at any point of time till date. In view of these contentions
defendants prayed to frame following issues
1. Does the plaintiff prove that he was in possession of the suit premises at any time
before leaving India in 2001 and or thereafter?
2. Does the plaintiff prove that he took possession of the suit premises on 27.03.2010
and if he took possession of the suit premises on 27.03.2010, is it a proper, legal and
valid possession obtained after following due process of law?
Plaintiff opposed draft notice of motion on the count that issues suggested are not
required to be framed and suit is under the provisions of section 6 of the Specific Relief
Act and in such a suit what is to be considered is only, whether the plaintiff was in
possession and was he possessed or not. Accordingly, he prayed for dismissal of notice of
motion.
It is apparent that suit has been filed by the plaintiff under section 6 of the Specific Relief
Act and contended that cause of action has arisen on 27th March, 2010 when he was
dispossessed from suit premises by the defendants by using force. No doubt, defendants
have denied the contention of the plaintiff in that regard. In the suit under section 6 of the
Specific Relief Act only issue which arises is, whether plaintiff was in possession of the
property and was dispossessed within six months prior to filing of suit without following
due process of law. Issue of title does not arise in such suit. Keeping in view this legal
position I proceed further.
It is not the contention of plaintiff that he took possession of suit premises on
27.03.2010. Plaintiff has come with specific case that he came into possession of suit
premises on 24.03.2010 and was dispossessed unlawfully by the defendants on
27.03.2010. In view of these facts issues which are framed by my learned Predecessor are
proper and appropriate for just decision of controversy between the parties. Issues as
suggested by the defendants are not necessary to decide controversy between the parties
particularly in view of the facts affirmed by the plaintiff in plaint and which are denied by
the defendants as pointed earlier. That being so, draft notice of motion deserves to be
dismissed. Hence, pass following order
ORDER
1.Draft notice of motion stands dismissed and disposed off accordingly.
2. Draft notice of motion be registered for statistical purpose.
Advocate for defendants sought adjournment for adducing evidence Adjournment is
granted as last chance.
Adjd. for recording evidence of defendants to 14.10.2019
Judge
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