Final Order 1

Order Details: Notice of Motion
Pdf Text: 1368-2019 1
IN THE COURT OF CITY CIVIL COURT AT GR.BOMBAY
NOTICE OF MOTION NO.4561 OF 2019
CNR NO.MHCCO10124732019
IN
S.C. SUIT NO.1368 OF 2019
M/s.Hiralal Desar Rana Clothing Company
LLP ..Plaintiff
Versus
Mrs.Kalyani Satish Jaiswal & anr ..Defendants
Plaintiff in person
Ld. advocate Chirag Gandhi for the defendants
CORAM: HIS HONOUR JUDGE SHRI M.SALMAN AZMI
DATE: 12/12/2019
ORAL ORDER
1. This notice of motion is tendered by the defendants
to call upon the witness Rikshav Prakash Chheda and
Prakash Shah for testifying the statement made in the
plaint as being the aggrieved individuals and to
summon them on failure their to remain present.
2. The defendants wish to cross examine them. The
defendants also applied for allowing this notice of
motion for examination of Vasant V.Kavkera and
Samir M.Bhosale to depose in the matter.
3. Heard.
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4. Ld. Counsel for the defendants submitted that
plaintiff is aggrieved person. The present affidavit
and plaint filed by the plaintiff's representative of the
firm. The aggrieved persons who are Rikhav Prakash
Chheda and Prakashchandra Harilal Shah who have
deposed false statement alleging about the forceful
dispossession from the suit premises annexed with
the plaint. The plaintiff is claiming possession in
respect of the suit premises but have intentionally
failed to produce the statement and or affidavit of
Prakash Shah who has handed over possession of the
suit premises to defendant no.2 on 19/05/2019. This
act of the plaintiff proves that the plaintiff is
suppressing facts. The said Prakash Shah on
19/05/2019 willingly without any force surrendered
the premises to defendant no.2 due to their failure to
pay the compensation from the month of November
2017 in respect of the suit premises and at the time
of handing over the possession, Prakash Shah even
assured that they will pay the due and only upon
receipt of the compensation the plaintiff be allowed
to withdraw its belongings from the suit premises.
Rikhav Chheda on 20/05/2019 succeed in break
open the ceiling of the suit premises and entered in
the suit premises, the same was noticed by the
neighbours in the vicinity and upon coming to their
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knowledge they informed the defendants about their
illegal act, it was even informed by the neighbour
that Mr.Prakash Shah was seating outside the suit
premises from morning it was then come to the
knowledge that the plaintiff with malafide intention
trying to grab the suit premises from the defendants
by entering into the suit premises through Rikhav
Chheda. The defendants relied upon the affidavits
filed by Samir M.Bhosle and Vasant N.Karkera.
5. On 20/05/2019, Prakash Shah called the police to
remove Rikhav Chheda from the suit premises when
defendant no.2 was called to open the door of the
suit premises in front of the police officers but after
coming to the knowledge about the unlawful and
malicious intention of the plaintiff, police officers
assisted the defendants to remove Rikhav Chheda
from the suit premises and lodge a criminal
complaint. The verification clause shows that Ashwin
H.Shah who filed the present suit, was not aware of
the facts and circumstances of the event conspired on
the date of 19/05/2019 and 20/05/2019 and
therefore before summarily proceeding with the
notice of motion no.2092 of 2019 it is necessary to
produce Rikhav Chheda and Prakash Shah to remain
present before this Court.
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6. The said notice of motion is opposed by the plaintiff.
It is the contention of the plaintiff that the
defendants are trying to delay to proceed with the
notice of motion no.2092/2019. The defendants
have wrongly and forcibly dispossessed the plaintiff
and therefore the suit is filed by the company
through its designated partner Ashwinkumar Harilal
Shah. The defendants have called upon plaintiff to
produce the alleged statement and/or affidavit of
Prakash Shah in proof of handing over possession of
the suit premises to defendants on 19/05/2019. If
the defendants are to be believed at all, their alleged
possession on 19/05/2019 has not matured even for
twentyfour hours as on the very next day i.e.on
20/05/2019 the plaintiff is alleged to have entered
the suit premises by breaking open the ceiling. The
defendants have categorically admitted in the FIR
dated 21/05/2019 that Prakash Shah is not vacating
his Gala and is also not paying him the rent amount
and therefore he took possession and affixed his lock
to the said Gala. Therefore the plaintiff submitted
that notice of motion be rejected.
7. I have considered the rival contentions of the parties.
The notice of motion no.2092/2019 was heard at
length. It was placed for orders but two other
motions were tendered by the defendants which
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were decided by this Court. Those notice of motions
came to be rejected, thereafter the defendants have
challenged the order in notice of motion
no.2700/2019 before the Hon'ble High Court by
filing an appeal but has subsequently withdrawn the
said appeal. The notice of motion of the defendants
bearing no.2612/2019 also came to be rejected on
19/09/2019. Thereafter the defendants have filed
another notice of motion bearing no.3820/2019
which also came to be rejected. Since long the notice
of motion no.2092/2019 is pending for orders. In
the meantime while the other notice of motions were
tendered which are required to be decided on
priority and those were decided. The defendants
have argued their case on the notice of motion
no.2092/2019 and now they cannot take the stand
after decisions in other notice of motion they wish to
examine the witnesses. The plaint verification shows
that plaintiff was aware of the facts of the case. The
grounds by the defendants to examine the witnesses
falls down from the FIR given by defendant no.2.
The statement given by defendant no.2 was that the
plaintiff was not giving the rent and not vacating the
gala and therefore he took possession and affixed his
lock to the said gala. In this background, notice of
motion is nothing but abuse of process of law. Hence,
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deserves to be rejected. Accordingly it is expedient
to pass following order:
ORDER
1. N/M No.4561/2019 stands rejected
2. Cost in the cause.
3. N/M No.4561/2019 is disposed off.
12/12/2019 M.SALMAN AZMI
CITY CIVIL COURT,
GR.MUMBAI.
Dictated on : 12/12/2019
Transcribed on : 23/12/2019
Signed on : 03/01/2020
'CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”.
03/01/2020 at 3.00 pm.
MRS.T.C.KAMBLE
Name of the Judge HHJ SHRI M.S.AZMI, CR NO.1
Date of Pronouncement of
judgment/order
12/12/2019
Judgment and order signed by P.O. 03/01/2020
Judgment/order uploaded on 03/01/2020
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