Final Order 2

Order Details: Order below exhibit
Pdf Text: S.C. Suit No.3329/2019 1 Order below Exhibit-1
IN THE BOMBAY CITY CIVIL COURT FOR GREATER BOMBAY
S. C. SUIT NO.3329 of 2019
Mr. Kisan Magan Waghela
.. Plaintiff
Versus
Mr. Suresh Gandhi and Ors.,
.. Defendants
CORAM : HIS HONOUR JUDGE
SHRI. U. C. DESHMUKH
COURT ROOM NO.03
DATE : 15/10/2025
ORDER BELOW EXHIBIT-1
The plaintiff has instituted the suit to declare that he is in
possession of suit premises i.e. hutment 142, Dhanji Ice Factory, Mathar
Pakhadi Road, Near Ice Factory, Mazgaon, Mumbai and for injunction
against defendant No. 1 and 2. He has instituted suit on behalf of
defendant No.3 as stated in plaint para No. 12.
2. Vide order dated 28.07.2025, the plaintiff was directed to
produce documents like property card, share certificates, photo-pass or
any other equivalent document in terms of clause VII, para 8 Chapter 2
of the Civil Manual. He was also asked to comply provisions of Order 7
Rule 3 of the Code of Civil Procedure (in short, ‘Code’).
3. Since 02.07.2024 the plaintiff is absent. Of course the
matter was kept for framing of issues. Record further showed that the
plaintiff has not served writ of summons upon defendant No.3.
Certainly the plaintiff does not ask any relief against defendant No. 3.
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S.C. Suit No.3329/2019 2 Order below Exhibit-1
In such case the suit needs to be dismissed against defendant No.3 for
want of prosecution.
4. The Court seen that the plaint is not duly instituted in
terms of provisions quoted herein above. Therefore, for ready reference
provisions of para 8 of Chapter II of the Civil Manual are reproduced
which are as under:
“8. The next step is the examination of the plaint in order to
determine whether it should be-
(a) admitted; or
(b) rejected (Order VII, Rule 11); or
(c) returned for presentation to the proper Court. (Order VII, Rule
10), or after strictly following the procedure envisaged in new Rule
10-A, Order VII of Civil Procedure Code, as amended by Act, 104 of
1976.
(d) returned for amendment on the ground that it is not framed as
required by law. This examination should be particularly directed
to ascertaining
(i) Whether the forms provided in Appendix ‘A’ of the Code
are followed as far as is reasonably possible (Order VI, Rule
3);
(ii) Whether names and addresses of parties are properly
described in title;
(iii) Whether the plaint is properly signed (Order VI, Rule
14);
(iv) Whether it is duly verified (Order VI, Rule 15);
(v) Whether it complies with the requirements of Order VII,
Rules 2, 4 and 6;
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S.C. Suit No.3329/2019 3 Order below Exhibit-1
(vi) Whether it is properly valued and stamped;
(vii) Whether a certified copy of extract of Record of Rights
is produced or not when the suit is in respect of agricultural
land; or whether the property extract of City Survey is
produced or not when the suit is in respect of immovable
property other than agricultural lands.”
5. Thus, it is seen that in view of provisions under para 8 of
Chapter II of the Civil Manual it is for the Court to examine the plaint
after it is presented before it in order to determine whether the plaint
should be admitted or rejected or returned to present to the proper
Court. Such examination of plaint should be directed to ascertain
whether it comply provisions of Order 7 Rule 3 of the Code as far as
possible, Whether plaint is properly signed or verified and or valued and
stamped.
6. Clause VII of Para 8 of Chapter II of the Civil Manual deals
with an examination of the plaint to ascertain whether a certified copy
of extract of record of the land is produced or not when the suit is in
respect of agricultural land or whether the property extract of city
survey is produced or not when the suit is in respect of immovable
property other than agricultural land.
7. It is needless to state that Court before passing a decree
pertaining to an immovable property shall ensure that decree likely to
be passed is unambiguous and the Court shall ascertain the status of the
suit property. Admittedly, the suit pertains to an immovable property.
Vide Clause VII para 8 read with para 18 of Chapter II of the Civil
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S.C. Suit No.3329/2019 4 Order below Exhibit-1
Manual mandates to specify survey number and a production of
property extract of city survey when the suit property is other than
agricultural land. The plaintiff does not state the City Survey number or
any survey number of which the suit property is part. Moreover the
plaintiff has also not come with a case that the suit premises is situated
in area which is declared as slum area and accordingly notification is
issued by competent authority under Section 4 of Maharashtra Slum
Areas (Improvement, Clearance and Redevelopment) Act 1971. If the
suit premises is slum then production of photo pass was essential.
8. It is further necessary to note that aforesaid provisions of
code and Civil Manual do not immune the plaintiff from mentioning
survey number and filing certified copies thereof. It is also not case of
the plaintiff that the property is a part of land in respect of which no
survey is conducted. Thus, it is seen that the plaint is not duly
instituted. Therefore it is liable to be rejected.
9. Before part with the order it is apt to mention that even for
the sake of discussion if it is presumed that the suit premises is in
existence, in fact, the trial of suit and adjudication of right of the parties
over the property, which is not legally in existence for want of
production of aforesaid documents and mention of survey number, may
amount to entertain a litigation in respect of the property of which
situation is not certain. It may also result in passing a decree which may
directly or indirectly confer rights and interest of either party over such
property. If such decree is passed, it may be used as proof of rights or
interest over the property which are not otherwise in existence in the
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eyes of law. Thus, it would be abuse of the process of law. In the result
following order is passed :
O R D E R
1. The plaint stands rejected with costs.
2. Accordingly Suit disposed of.
(U. C. DESHMUKH)
Judge,
City Civil Court, Greater Bombay
Dated : 15.10.2025 C.R. No.03
Dictation Typed on : 15.10.2025
Checked & Signed on : 15.10.2025
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