Final Order 1

Order Details: Other
Pdf Text: Order M. A. 126/2019
MHCC010114242019 Presented on : 08.11.2019
Registered on : 08.11.2019
Decided on : 08.10.2024
Duration : 04 11 00
Years Months Days
IN THE COURT OF CITY CIVIL FOR GREATER BOMBAY, AT
BOMBAY
MISCELLANEOUS APPLICATION NO.126/2019
IN
SUIT NO.1006/2018
(CNR NO. MHCC010114242019)
1 Ms. Ashwini Prashant
Age: 49 years, Occ.: Housewife,
B/4, Anandashram CHS, Shamrao Vitthal
Marg (Proctor Road), Opp. Emmanuel
Church, Grant Road (E), Mumbai 400007.
2 Dr. Amit Sharad Kulkarni
Age: 44 years, Occ.: Service,
5, Hartland Commons, North Brunswick,
NJ 08902, USA. … Applicants/
Orig. Defendants
Versus
Dr. Deepak Ashok Kulkarni
Age 44 years, Occ.: Doctor,
3/C, 5 Sonawala Building, Javji Dadaji
Marg, Tardeo, Mumbai 400007. … Respondent/
Orig. Plaintiff
CORAM : HIS HONOUR JUDGE, R. D. DESHPANDE
COURT ROOM NO. 61
DATE : 08.10.2024
-- 1 of 11 --
Order 2 M. A. 126/2019
Appearances: -
Adv. Pankti Haria for applicants/original defendants.
Adv. Nilesh Das for opponent/original plaintiff.
ORDER
(Dictated and pronounced in open Court)
This is an application filed by (applicants)/original
defendants under Section 340 of the Code of Criminal Procedure,
1973 for taking action against opponent (original plaintiff) as
according to them, he has made false statements in the plaint and
particularly in Paragraphs No.6 and 8.
2. Facts in brief are as follows: -
3. According to applicants the Suit is filed against them
for partition. In Paragraphs No.6 and 8 which are reproduced in
this application, opponent has made false statements regarding the
alleged conference call in between him and applicants dated
19.09.2016 and further about asking of value of share of their late
father in the Partnership Firm M/s. Orient Homeopathic Pharmacy.
According to them, by making such false pleading, opponent has
defrauded this Court. Opponent has not only made false
statements on oath but has also forged the documents by
suppressing material facts. He has fraudulently re-constituted the
partnership firm along with his father by fabricating the “Deed of
Reconstituted Partnership”. Applicants have already approached
the Registrar of Firms by their letter dated 22.05.2017 narrating
the true facts and thereby requesting to refrain from making any
-- 2 of 11 --
Order 3 M. A. 126/2019
changes in the registration of the said partnership firm.
4. It is further averred that, applicant No.1 has also filed
complaint with the Senior Inspector of Police, but no cognizance
was taken and therefore, they filed private complaint in the Court
of Metropolitan Magistrate at Girgaon and process is issued against
opponent and his wife. Matter is subjudice. On all these grounds
applicants prayed to this Court to initiate appropriate proceedings
against opponent, as mandated under Section 340 of the Code of
Criminal Procedure to unearth offences committed by him under
Sections 177, 181 etc. of the Indian Penal Code.
5. Opponent by filing his Say strongly resisted the
application. It is contended by him that the present application is
moved by applicants with the sole motive of delaying the due
process of law. It is not meeting out any of the ingredients of
Section 340 of the Code of Criminal Procedure as it is false or
baseless and without any iota of evidence. It is difficult to
comprehend that applicants have suddenly after about 2 years of
service of summons have suddenly discovered alleged fact. The
Suit is in respect of partition of flat No. B-4 situate at
Anandashram CHSL, Shamrao Vitthal Marg (Proctor Road), Opp.
Emmanuel Church, Grant Road (E), Mumbai 400007. The subject
matter of this application has no concern, with the issue involved
in the Suit. Thus, by filing such application, applicants are
attempting to divert from the issue and to prolong the litigation to
suit their convenience.
-- 3 of 11 --
Order 4 M. A. 126/2019
6. Opponent further denied that he has committed any
fraud or that he has suppressed the material facts. The same
appears to be nothing but figment of applicants fertile imagination.
There is nothing brought on record to show that the statements
made by him are either false or incorrect. Unless those are proved,
those cannot be considered. Evidence is yet to be adduced by both
the parties. On all these grounds he prayed that application may
be rejected.
7. Following Points arise for my determination and I
record my findings against each of them for the reasons given
below: -
Sr.
No. Points Findings
1 Whether appropriate proceeding under
Section 340 of the Code of Criminal
Procedure deserves to be initiated
against opponent as prayed?
::
No.
2 What order?
::
Miscellaneous
Application is
rejected as per
final order.
REASONS
Point No.1: -
8. Adv. of applicants Pankti Haria vehemently argued that
the Suit is filed against them for partition. In Paragraphs No.6 and
8 which are reproduced in this application, opponent has made
false statements regarding the alleged conference call in between
-- 4 of 11 --
Order 5 M. A. 126/2019
him and applicants dated 19.09.2016 and further about asking of
value of share of their late father in the Partnership Firm M/s.
Orient Homeopathic Pharmacy. According to them, by making such
false pleading, opponent has defrauded this Court. Opponent has
not only made false statements on oath but has also forged the
documents by suppressing material facts. He has fraudulently re-
constituted the partnership firm along with his father by
fabricating the “Deed of Reconstituted Partnership”. Applicants
have already approached the Registrar of Firms by their letter
dated 22.05.2017 narrating the true facts and thereby requesting
to refrain from making any changes in the registration of the said
partnership firm.
9. She further argued that, applicant No.1 has also filed
complaint with the Senior Inspector of Police, but no cognizance
was taken and therefore, they filed private complaint in the Court
of Metropolitan Magistrate at Girgaon and process is issued against
opponent and his wife. Matter is subjudice. On all these grounds
applicants prayed to this Court to initiate appropriate proceedings
against opponent, as mandated under Section 340 of the Code of
Criminal Procedure to unearth offences committed by him under
Sections 177, 181 etc. of the Indian Penal Code.
10. She relied upon following cases:-
1. “Kenneth Desa s/o Late John Desa and another Vs.
Gopal s/o Leeladhar Narang” in Criminal Application
-- 5 of 11 --
Order 6 M. A. 126/2019
No.1115/2007, in which it is held by Hon’ble Bombay High
Court that, “Whenever an application under Section 340 of
the Code of Criminal Procedure is filed, Chapter XIX, Para
337 of the Civil Manual requires that it should be registered
as Miscellaneous Judicial Case i.e. a case where a judicial
inquiry is contemplated”.
2. “Prabhakar Yeshwant Masram and anr. Vs. Hon’ble
7th Ad hoc Additional District Judge”, reported in 2013 (1)
Bombay C. R.(Cri.) Page 13, in which it is held by Hon’ble
Bombay High Court that, “The case of perjury should be
sanctioned by the Courts, only if action of accused persons
appears to be deliberate and conscious”.
3. “Union of India and Ors. Vs. Haresh Virumal Milani”,
in Writ Petition (ST.) No.4899 of 2017, in which it is held by
Hon’ble Bombay High Court that, “ it is not obligatory for the
Court to give audience to the person against whom it wants
to proceed while exercising powers under Section 340 of the
Code of Criminal Procedure. The Civil Court conducting an
inquiry under Section 340 of the Code of Criminal Procedure
has power to call the witness and can exercise the power
under Section 311 of the said Code”.
11. Advocate of the defendant Mr. Nilesh Das apart from
submitting his written notes of arguments for opponent at (Exh.3),
has also advanced his oral arguments. He replied that Paragraph
-- 6 of 11 --
Order 7 M. A. 126/2019
No.6 in the plaint speaks about the conversation only which has
taken place in between the parties. No documents to that effect are
produced on record. Paragraph No.9 of the plaint speaks about
notice issued by original plaintiff and reply by the defendants.
These are merely the pleadings and evidence to that effect is yet to
be adduced. Therefore, it cannot be said at this stage that plaintiff
has adduced false evidence or made any false statement on oath.
12. He further replied that, in fact, Paragraphs No.6 and 8
of the plaint are having no connection with the subject matter of
the Suit i.e. flat No.B-4. Suit is for partition of said Suit flat No.B-4
situate in Anandashram CHSL, Shamrao Vitthal Marg (Proctor
Road), Opp. Emmanuel Church, Grant Road (E), Mumbai 400007.
Opponent has not made any false statement on oath. Section 340
of the Code of Civil Procedure is not at all applicable. Present
application is filed merely to delay hearing of the Suit. Therefore,
he prayed that application may be rejected.
13. Upon careful perusal of the application, Say filed by
opponent and the documents placed on record, I find substance in
the arguments of Adv. Mr. Nilesh Das for opponent. Because Suit
No.1006/2018 is for partition of the Suit flat No. B-4 situate in
Anandashram CHSL, Shamrao Vitthal Marg (Proctor Road), Opp.
Emmanuel Church, Grant Road (E), Mumbai 400007. While
deciding this Suit, Court is only required to see whether opponent
(Orig. plaintiff) is entitled to get 50 % right, title and interest in
-- 7 of 11 --
Order 8 M. A. 126/2019
this flat. Court is not supposed to give its finding regarding
reconstitution of the partnership firm i.e. M/s. Orient Homeopathic
Pharmacy and the dispute about it in between the applicants and
opponent, since that is not the subject matter of the Suit.
14. Matter is already taken up by applicants before the
Registrar of Firms by filing appropriate proceeding regarding their
grievance in respect of reconstitution of said partnership firm by
opponent and his father. It is also seen from the record that
applicants have also filed private complaint against opponent and
his wife before the Metropolitan Magistrate Court at Girgaon and
the matter is subjudice.
15. So far as present application is concerned and
especially Paragraphs No.6 and 8 of the plaint in Suit
NO.1006/2018, those have nothing to do with the controversy in
the Suit as it is in respect of only the partition for flat No. B-4
situate in Anandashram CHSL, Shamrao Vitthal Marg (Proctor
Road), Opp. Emmanuel Church, Grant Road (E), Mumbai 400007.
16. I have carefully gone through facts of all the cited cases
on which Adv. Pankti Haria for applicants placed her reliance. In
the first cited case “Kenneth Desa s/o Late John Desa and another
Vs. Gopal s/o Leeladhar Narang”, issue before Hon’ble High Court
was whether application filed by the party under Section 340 of
the Code of Criminal Procedure in a Suit requires to be registered
separately. It was held that when such application is filed then as
-- 8 of 11 --
Order 9 M. A. 126/2019
per Chapter XIX, Paragraph 337 of the Civil Manual, it is required
to be registered as Miscellaneous Judicial Case i.e. a case where a
judicial inquiry is contemplated. In the case at hands, such
application is already registered.
17. In the second cited case “Prabhakar Yeshwant Masram
and anr. Vs. Hon’ble 7th Ad hoc Additional District Judge”, there
was breach of an order of injunction. The defendant in spite of
direction to maintain status quo and not to construct any structure,
by taking undue advantage of the vacations, demolished chamber
and drainage and diverted the course of water. Defendant filed
false affidavit by stating that he was not aware of the Court orders,
while plaintiff pleaded that orders were passed in the presence of
the defendant and he was very much aware of it.
18. In that context Hon’ble High Court held that the
proceeding under Section 340 of the Code of Criminal procedure
has to be initiated. But such is not the position in the case at
hands. As said earlier, there is no evidence as regards averments in
the Paragraphs No.6 and 8 of the plaint as parties are yet to
adduce their evidence. Moreover, Paragraphs No.6 and 8 of the
plaint are having no relation with the subject mater of the Suit
which is for partition of the Suit flat No. B-4. Therefore, with due
respect the law laid down in this cited case is not helpful to
applicants.
-- 9 of 11 --
Order 10 M. A. 126/2019
19. In the third cited case ““Union of India and Ors. Vs.
Haresh Virumal Milani” the question before Hon’ble Bombay High
Court was whether it is obligatory to give audience to the person
against whom the Court wants to proceed by exercising its powers
under Section 340 of the Code of Criminal Procedure and whether
the Court can call the witness and exercise power under Section
311 of the Code while conducting inquiry under Section 340. But
such is also not the position in the case at hands. Therefore, with
due respect the law laid down in this cited case also is not helpful
to applicants.
20. In short, I did not find any substance in the averments
in the application and no case is made out by the applicants to
take the action against opponent as per Section 340 of the Code of
Criminal Procedure. Hence the following order: -
ORDER
1. Miscellaneous Application No.126/2019 is rejected.
2. Accordingly, Miscellaneous Application No.126/2019
stands disposed off.
DATE: - 08.10.2024 (R. D. DESHPANDE)
JUDGE, CITY CIVIL COURT
& ADDL. SESSIONS JUDGE,
GR. MUMBAI.
Dictated on : 05.10.2024
Transcribed on : 05.10.2024
Checked on : 08.10.2024
Signed on : 08.10.2024
-- 10 of 11 --
Order 11 M. A. 126/2019
"CERTIFIED TO BE TRUE AND CORRECT COPY OF THE
ORIGINAL SIGNED JUDGMENT/ORDER"
DATE: 08.10.2024, AT 05.43 P. M. Mr. Siddhesh Shankar Shirke
STENOGRAPHER (GRADE-I)
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (with Court
no.) :
SHRI R. D. DESHPANDE (C.
R. NO. 61.)
Date of pronouncement of
Judgment/order : 08.10.2024
Judgment/order signed by the P. O.
on : 08.10.2024
Judgment/order uploaded on : 08.10.2024
-- 11 of 11 --