Final Order 1

Order Details: Notice of Motion
Pdf Text: ORDER ..1.. NM NO. 4486/2019
MHCC010122612019
IN THE CITY CIVIL COURT FOR GREATER MUMBAI
NOTICE OF MOTION NO. 4486 OF 2019
IN
S.C. SUIT NO. 303 OF 2014
Mr. Popatlal Babulalji Sanghavi. …Plaintiff
Versus
Shree Laxmi Vijay Printing Press, a Firm. … Defendant.
Advocates
R.B. Jain for the plaintiff.
Vaibhav Mehta @ Nitesh Pande for the defendant.
CORAM : HIS HONOUR JUDGE
Sunil T. Soor.
(COURT No.: 2) I
DATED : 26th November 2021.
ORAL ORDER
Heard advocate for both parties on notice of motion moved on
behalf of the defendant for stay of the present suit under section 10 r/w
151 of the Civil Procedure Code (C.P.C.) till decision of R.A.D. Suit
No.1176/2015 filed by the sole proprietress of the defendant before the
Small Causes Court at Mumbai.
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ORDER ..2.. NM NO. 4486/2019
2. Plaintiff strongly opposed the notice of motion by filing reply.
Perused the Notice of Motion, reply of the plaintiff and pleadings of the
parties.
3. At the time of hearing of the present notice of motion, advocate
for the defendant given endorsement on the notice of motion itself and
submitted to decide the notice of motion alongwith the suit. However
advocate for the plaintiff strongly objected to decide the notice of
motion alongwith the suit. Hence the notice of motion is taken for
consideration.
4. Contention of advocate for the defendant is that the plaintiff
filed the present suit for possession of the suit premises i.e., Room No.3
admeasuring about 266.56 sq. fts. build up area situated on the ground
floor of Madhoram Building, Kalbadevi Road, Mumbai – 400 002.
According to the plaintiff, one Shri. N.D. Japee (deceased) was tenant
of the suit premises, plaintiff acquired the Madhoram Building by Deed
of Conveyance dated 28.02.2011 and defendant is wrongfully
occupying the suit premises. N.D. Japee was having a son, Bharatkumar
Japee (deceased). Widow of deceased Bharatkumar Japee i.e., Vasumati
Bharat Japee, sole proprietress of the defendant alongwith her daughter
filed a R.A.D. Suit No. 1176/2015 before the Small Causes Court at
Mumbai for declaration of tenancy right in respect of the suit premises
and in that suit she already filed affidavit of evidence alongwith
documents. Subject matter the present suit and R.A.D. Suit No.
1176/2015 is the same. Hence he prayed for stay of the present suit and
allowing the notice of motion absolute.
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ORDER ..3.. NM NO. 4486/2019
5. Contention of advocate for the plaintiff is that present suit is
filed earlier i.e., on 18.01.2014 whereas R.A.D. Suit is filed
subsequently i.e., on 10.07.2015. Parties to both suits are different.
Reliefs sought in the present suit cannot be granted by the Small Causes
Court whereas reliefs sought in R.A.D. suit cannot be granted by this
Court. Description of the suit premises in both the suit are different.
Present suit cannot be stayed under section 10 r/w section 151 of the
C.P.C. By order dated 19.03.2015, hearing of the suit was expedited.
Plaintiff filed his evidence in March 2018. Defendant sought several
adjournment and matter was adjourned on 27 days. Defendant filed
present notice of motion only to delay the matter. Hence he prayed for
dismissal of notice of motion.
6. Advocate for both parties filed on record citations in support of
their contentions. However the provision of section 10 of the C.P.C. is
very clear and unambiguous. So also section 151 of the C.P.C. is not
applicable to the present notice of motion as inherent power of the
Court cannot be invoke when there is special provision under the C.P.C.
for stay of the suit.
7. Section 10 of the C.P.C. deals with stay of the suit and provides
that no Court shall proceed with the trial of any suit in which the
matter in issue is also directly and substantially in issue in a previously
instituted suit between the same parties, or between parties under
whom they or any of them claim litigating under the same title where
such suit is pending in the same or any other Court in India having
jurisdiction to grant the relief claim, or in any Court beyond the limits
of the India established or continued by the Central Government and
having like jurisdiction, or before the Supreme Court.
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ORDER ..4.. NM NO. 4486/2019
8. The object of section 10 of the C.P.C. is to prevent two Courts of
concurrent jurisdiction from simultaneously trying two parallel suits in
respect of the same matter in issue. Concurrent jurisdiction means that
two different Courts have the authority to hear the same case. Policy of
the law is to confine the plaintiff to one litigation. This obviates
multiplicity of suit as also the possibility of contradictory verdicts by
two or more Courts in respect of the same relief.
9. In view of above legal position, object of section 10 of the CPC
and facts of the case, present notice of motion is to be decided. Present
suit is a previously instituted suit and has been filed for possession of
the suit premises. R.A.D. suit by the sole proprietress of the defendant is
a subsequently instituted suit for declaration of the tenancy rights in the
suit premises. Subject matter of both suits i.e. the reliefs claimed are
different. Relief claimed by the plaintiff in the present suit cannot be
granted in R.A.D. suit pending before the Small Causes Court whereas
the reliefs claimed by the sole proprietress of the defendant in R.A.D.
suit cannot be granted by this Court. Jurisdiction of both Courts to
decide the present suit and R.A.D. suit are different though the suit
premises is same. Area of the suit premises is in dispute. Hence notice of
motion taken out by the defendant is not legally sustainable. Case was
fixed for evidence of the plaintiff. Defendant is prolonging the matter.
Hence notice of motion liable to be dismissed with costs.
ORDER
1. Notice of motion no. 4486/2019 is dismissed with costs of
Rs.5,000/- to be paid to District Legal Services Authority before the next
date.
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ORDER ..5.. NM NO. 4486/2019
2. Notice of motion no. 4486/2019 is disposed of.
(Sunil T. Soor)
Judge
City Civil Court, Gr.Mumbai
Date : 26.11.2021
Typed on : 26.11.2021
HHJ signed on : 26.11.2021
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ORDER ..6.. NM NO. 4486/2019
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
DATED 26.11.2021, 2.30 p.m.
UPLOAD DATE AND TIME Mrs. V. N. Rajgole.
NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.)
H.H.J. Shri. S. T. Soor
C.R.No.02
Date of Pronouncement of
JUDGMENT/ORDER
26.11.2021
JUDGMENT/ORDER signed by P.O.
on
26.11.2021
JUDGMENT/ORDER uploaded on 26.11.2021
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