Final Order 1

Order Details: Other
Pdf Text: 1 Review Petition No.270 of 2019
CNR: MHCC01-011339-2019
IN THE BOMBAY CITY CIVIL C0URT AT BOMBAY
REVIEW PETITION NO.270 OF 2019
IN
L.C.SUIT NO.9785 OF 1999
1 Bahman Behram Hamadani & Ors. .. Plaintiffs
V/s.
1 Babulal Ramdutt Chaurasia(since deceased)
1(a) Devendra Kumar Babulal Chaurasia & Ors. .. Defendants
Appearance:-
Adv. Rajesh Patil h/f Adv. Kiran Jain for plaintiffs.
Adv. Bhatia h/f Adv. Rajaballi for defendant No.1(a), 1(c) 1(d).
Adv. Pradip Patil for MCGM.
CORAM : HIS HONOUR ADDL. SESSIONS
JUDGE
SHRI. R. M. MISHRA
CITY CIVIL COURT, GR. BOMBAY
(C.R. NO.05).
DATE : 23/10/2023
ORDER
This review petition is filed by the defendant Nos. 1(a) to
1(b) for reviewing the order dt.24/09/2019 and to decide the
additional issue No.1 to 3(Ex.3A) as preliminary issue by modifying and
/or setting aside the order dt.24/09/2019.
2 The learned advocate for the plaintiffs and defendant No.
1(a) to 1(b) apart from their oral submissions also filed their written
submissions at Ex.61 and 62 respectively. The learned advocate for the
plaintiffs submitted that affidavit evidence of the plaintiffs was filed in
the year 2014 alongwith compilation of documents. During the
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pendency of the suit, LRs of the deceased defendant No.1 filed their
additional written statement and raised three legal issues. Therefore, on
31/03/2016, additional issues were framed (Ex.3A). He submitted that
after PW-1 was partly cross examined, this Court had passed the order
to decide these additional issues first. The defendants had shown their
willingness to lead oral evidence on these preliminary issues.
Accordingly, affidavit of evidence of one of the defendants was filed on
record. This witness of the defendants was also partly cross examined.
However, the learned predecessor Judge of this Court again passed the
order that these three issues cannot be decided as preliminary issues.
The learned advocate for the plaintiffs, therefore, vehemently submitted
that the impugned order passed by the learned judge of this Court
dt.24/09/2019 needs to be reviewed in view of aforesaid facts and
circumstances.
3 On the other hand, learned advocate for the defendant 1(a)
to 1(d) submitted that there is no error of any nature on the face of the
record and this application is filed to prolong the matter. After the
pleadings were concluded, evidence of PW-1 was filed and PW-1 was
partly cross examined. However, learned advocate took advantage of
the amended provisions of Section 9A of CPC. Recently, provision of
Section 9A has been deleted by the legislature. Therefore, the learned
predecessor judge of this Court declined to decide these issues as
preliminary issues. In order to expedite the disposal of the matter, it is
necessary to decide all the issues altogether. The plaintiffs have not
made out any case under order 47 r/w.114 of CPC and these provisions
do not apply to the facts of the present petition. Learned advocate for
the defendant 1(a) to 1(d), therefore, vehemently submitted that
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revision petition is liable to be dismissed with costs.
4 After considering the submissions of both sides, I have
carefully gone through the entire facts and circumstances on record. As
can be seen from the roznama dt. 06/03/2018, the then learned
Presiding Judge of this Court heard both sides and observed that the
plaintiffs have filed their affidavit of evidence and cross examination
was PW-1 was also partly recorded. Thereafter, it has been held that
additional issues (Ex.3A) pertaining to the jurisdiction of the Court goes
to the root of the trial, therefore, it is necessary to decide these issues
first by keeping aside other factual issues. After the learned advocate for
the defendant No.1 and 2 shown willingness to lead oral evidence of
these issues, matter was kept for filing affidavit of the defendants on
these additional issues.
5 Moreover, perusal of record shows that the evidence of DW-
1 came to be filed on 28/06/2018. On 16/10/2018, 5/1/2019 and on
11/4/2019, DW-1 was partly cross examined. Thereafter, on
18/06/2019, another learned Presiding Judge of this Court observed
that the suit is posted for hearing on preliminary issues. He observed
that issues are already framed, therefore, question needs to be
determined is whether preliminary issues can be dealt with and,
therefore, the matter was kept for hearing.
6 On 17/09/2019, arguments of both sides were heard and
the matter was kept on 25/09/2019 for passing the order. However,
matter came on the board on 21/09/2019 and on that day, after the
board was discharged, matter was kept for passing order on
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24/09/2019. On that day i.e. on 24/09/2019, my learned predecessor
after considering the provisions of Order 14 Rule 2 of the Code of Civil
Procedure came to the conclusion that Court is expected to pronounce
the judgment on all issues. It is held that the issue relating to res
judicata and limitation are mixed question of law and fact, therefore,
came to the conclusion that these issues at Ex.3A are therefore, to be
decided alongwith other issues. Accordingly, matter was again kept for
further cross examination of PW-1.
7 Having regard to the entire facts and circumstances, it is
apparent that initially after the pleadings were completed, issues were
framed on 30/11/2013 below Ex.3. However, after the death of one of
the defendant, additional written statement came to be filed by the Lrs
of deceased defendant. Accordingly, additional issues were framed
below Ex.3A. Another significant thing which is necessary to be taken
into consideration is that the trial in this case was already commenced
and after filing the evidence of PW-1, he was partly cross examined.
However, then Presiding Judge of this Court was of the opinion that
additional issues framed below Ex.3A are pertaining to the jurisdiction
of the Court, therefore, he decided to proceed with those additional
issued by way of preliminary issues. Accordingly, evidence of DW-1 was
tendered on record to the extent of these preliminary issues.
8 Thereafter, another learned Presiding Judge of this court
found that these additional issues involved mixed questions of facts and
laws and came to the conclusion that these issues are required to be
decided alongwith other issues and put up the matter for the evidence
of the plaintiffs. After careful consideration of all these circumstances, it
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is necessary to note that this suit is pending since 1999. Originally, the
suit was filed in the Ordinary Original Civil Jurisdiction of the Hon’ble
Bombay High Court. As discussed earlier, pleadings were already
completed and after framing the issues, the trial was also commenced
and PW-1 was partly cross examined in this case. Therefore, while
considering these subsequent events which took place by an order
dt.18/06/2019 and 24/09/2019, I am of the considered view that no
ingredients are made out by the plaintiffs as provided u/s.114 r/w. Rule
1 of Order 47 of the Code of Civil Procedure. There is nothing on record
which can be said to be a mistake or error apparent on the face of
record nor any other sufficient reasons is made by the plaintiffs to
obtain review of the order dt.24/09/2019. At the cost of repetition, it is
already discussed that the trial in this suit was already commenced long
back and after filing evidence of PW-1, he was partly cross examined by
other side. It is therefore, necessary to decide all the issues together
when the trial is already commenced. In view of these reasons, I come
to the conclusion that review petition deserves to be dismissed. In the
result, following order is passed.
ORDER
1 Review Petition No.270 of 2019 is hereby dismissed.
2 No order as to costs.
3 Review Petition stands disposed off accordingly.
Date:23/10/2023. (R. M. Mishra )
Judge, City Civil Court,
Dictated on :23/10/2023. Gr.Mumbai.
Typed on :23/10/2023.
Signed on :25/10/2023.
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
25/10/2023 12.10 p.m. (Santosh B. Sawant )
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court room
No.)
HHJ Shri. R. M. Mishra
(C.R.No.05)
Date of Pronouncement of
JUDGMENT/ORDER
23/10/2023.
JUDGMENT/ORDER signed by P.O.on 25/10/2023.
JUDGMENT/ORDER uploaded on 25/10/2023.
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