Final Order 1

Order Details: Notice of Motion
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IN THE COURT OF CITY CIVIL COURT AT GR.BOMBAY
NOTICE OF MOTION NO.4734 OF 2019
CNR NO.MHCCO10129182019
IN
S.C. SUIT NO.9488 OF 1989
Smt.Samir Narendra Gupta ..Plaintiff
Versus
1. Ganpat Sahay Datadin Gupta....(since deceased)
through his legal representatives
Upendra Shreedutt Singh and others ..Defendants
Plaintiff present alongwith her Constituted attorney.
Ld. advocate Mr.Rajesh Singh for defendant nos.2, 5 to 7.
CORAM: HIS HONOUR JUDGE SHRI M.SALMAN AZMI
DATE: 12/12/2019
ORAL ORDER
1. This notice of motion is interalia tendered by plaintiff
seeking relief for recalling the order dated 6 December 2019 passed
in NM no. 4593/2019.
2. Heard CA of plaintiff and learned counsel for
defendant nos.2, 5 to 7.
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3. At the outset the contention raised in the present notice
of motion appears to be on the merits of the matter and has nothing
to do with the merit of order passed in NM No. 4593/2019. The
plaintiff has raised aspersion against this court while passing order
in the above said notice of motion. The plaintiff to take note that
this court was not influenced by the L.R.'s of deceased defendant
i.e. deft. no.2, 5, 6 and 7. This statement of plaintiff appears to be
interference in the administration of justice. The plaintiff is
cautioned to desist from making any such statement.
4. The plaintiff has raised contention that this court has
made its mind that the notice of motion tendered by the defendants
would be dismissed. The said contention of plaintiff is absolutely
false and contrary to the record. The plaintiff is directed to desist
from making any such comment. The priority of this court is to
decide the suit as per the direction of the Hon’ble High Court. The
entire argument which was canvassed on behalf of the plaintiff was
as to what transpired earlier in the proceedings which has nothing
to do with the order passed in NM no 4593/ 2019. Plaintiff has
placed reliance upon following judgements:
(1) Ram Chandra Singh V/s. Savitri Devi and Ors. in Appeal (Civil)
8216 of 2003 by Hon'ble Supreme Court.
(2) Gayathri V/s. M. Girish in Special Leave Petition (C) No. Of
2016 (CC No.14061 of 2016) by Hon'ble Supreme Court.
(3) Gurdial Singh & Ors. V/s. Raj Kumar Aneja & Ors. in Appeal
(Civil) 2896 of 2001.
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(4) Leeladhar V/s. Mohammad Ismail Qureshi, by Hon'ble
Allahabad High Court.
(5) Mohinder Kumar Mehra V/s. Roop Rani Mehra by Hon'ble
Supreme Court.
(6) Smt. Manju Parthi, Ms. Nikita V/s. Sh. Rohit Parthi by
Hon'ble Delhi High Court.
(7) Vidyawati V/s. Man Mohan & Ors. 1995 AIR 1653 by Hon'ble
Supreme Court.
(8) 2014 (2) All MR 281 (Bom).
(9) Babulal N. Shukla V/s. Jeshankar N. Shukla, AIR 1972 Cal
494 by Hon'ble Calcutta High Court.
(10) H.S. Bedi V/s. National Highway Authority of India, 2016(I)
AD Delhi 661.
(11) Sanjeev Kumar Mittal V/s. The State, 2010
Cr.M(M)No.6721/2010.
(12) MANU/WB/0007/2017.
(13) Hakam Singh and Ors. V/s. Isham Singh and Ors. by Hon'ble
High Court of Punjab and Haryana.
(14) Murray and Co. V/s. Ashok Kr. Newatia and Anr., Contempt
Petition (civil) 378 of 1998.
(15) D.P. Chadha V/s. Triyugi Narain Mishra & Ors., Appeal
(Civil) 1124/1998.
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5. I had given conscious consideration to the law laid
down in the above cited judgements. The above cited judgements
have no relevance in the present controversy which is involved in
the notice of motion. Therefore, the judgements cited are with
greatest of respect not applicable to the issue involved in the
present N/M.
6. The plaintiff wishes to recall the order in NM No.
4593/2019. It apparently appears that the plaintiff wishes to review
the order in said notice of motion. The plaintiff has to point out that
there is error apparent on the face of record which resulted in
miscarriage of justice. There is nothing in the present notice of
motion to point out the same. The contention of the plaintiff is that
the defendant nos.2, 5 to 7 have no right and only the deft. no.1
who is only the executor of will, has right to continue the suit on
behalf of original defendant no.1.
7. The counsel for defendants no.2, 5 to 7 submitted that
this court cannot recall its own order and even cannot recall the
order of the predecessor of this court which had been challenged by
the plaintiff herself in writ petition filed before the Hon'ble High
Court. He would submit that the N/M is nothing but abuse of
process of law.
8. The earlier notice of motion no.3464/18 was allowed
on 02.02.2019 by the predecessor of this court and whereby the
order of exparte against deft. no.2, 4 to 6 was set aside and the
written statement of these defendants were allowed to be taken on
record. The plaintiff has challenged the said order. The copy of said
written statement was supplied to the plaintiff and the same was
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not on the record. By way of notice of motion No. 4593/ 2019 the
defendants intended to tender it on the record and has given reason
as to why it was not tendered on the record. The court while
considering the said notice of motion limited its enquiry only to the
effect that as to why the compliance of order in NM no.3464/18
was not made. The court cannot go into the reason and review of
the order in NM no.3464/18 when it is subject matter of challenge
before the Hon'ble High Court.
9. The order of ex parte against the defendant nos.2, 4 to
6 was set aside and their WS was permitted to be taken on record
and therefore they are required to be given opportunity to cross
examine the plaintiff and her witness. Even they are required to be
given opportunity to lead evidence.
10. By present notice of motion, plaintiff failed to point out
any illegality or perversity in the order dated 6 December 2019 in
NM No.4593/2019. The contention of the plaintiff that the
defendant no.2, 5 to 7 have no right to contest the suit is not legally
tenable. The order 22 rule 4 of C.P.C. does not bar the legal heirs
from contesting the suit when the executor of the will of the
original defendant no.1 is on the record. Once, the opportunity has
been granted by the Predecessor of this Court to the said
defendants, this court cannot take away the right of those
defendants in this N/M and particularly when the order in said N/M
no.3464/18 is subject matter of challenge. No ground is set out by
the plaintiff in present N/M which is necessary for review of the
order dated 06.12.2019 in N/M no.4593/19. At the time of
tendering N/M no.4593/19 the CA of plaintiff only submitted that
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plaintiff object to the said N/M but has not filed reply setting out
the reasons for opposing it. Thus, now the plaintiff can’t oppose the
N/M no.4593/19 on merits. As pointed above plaintiff can only
point out any error apparent on the face of the said order which
plaintiff failed to point out. It is not the case of the plaintiff that the
N/M no.4593/19 is based upon the incorrect statement and is
outcome of fraud. Thus, in this background, the present N/M needs
no consideration. Hence, it is expedient to pass the following order.
ORDER
1. N/M No.4734/19 stands rejected.
2. Cost in the cause.
3. N/M No.4734/19 is disposed off accordingly.
12/12/2019 M.SALMAN AZMI
JUDGE
CITY CIVIL COURT,
GR.MUMBAI.
Dictated on : 12/12/2019
Transcribed on : 12/12/2019
Signed on : 13/12/2019
'CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”.
13/12/19 at 5.45 pm.
MRS.T.C.KAMBLE
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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.
13/12/2019
Judgment/order uploaded on 13/12/2019
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