Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 Suit No.9488/1989
IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
NOTICE OF MOTION NO.4838 OF 2019
CNR NO.MHCCO10132002019
IN
S.C.SUIT NO. 9488 OF 1989
HIGH COURT SUIT NO.1986 OF 1989
(CNR NO.MH CCO10067522012)
Samir Narendra Gupta,
an adult inhabitant of Bombay,
residing at 401B, Mathuria
Apartment, M.V.Road, Andheri(E),
Bombay 400 059. ..Plaintiff
Versus
1. Ganpat Sahay Datadin Gupta
an adult inhabitant of Bombay,
residing at Flat no.1 & 2, Shiv
Niketan, M.V.Road, Andheri(E),
Bombay 400 069.
2. Kewladevi Ganpat Sahay,
an adult inhabitant of Bombay,
residing at Flat no.1 & 2, Shiv
Niketan, M.V.Road, Andheri(E),
Bombay 400 069. (since deceased through his Lrs)
1. Shri. Upendra Shreedutt Singh
Age about 69 years An Hindu,
Indian Inhabitant, OccupationRetired,
Exchief Commissioner of Income Tax,
residing at Flat No.1701, 18th floor,
Near Siddhivinak Temple,
Veer Sawarkar Marg, Prabhadevi
Dadar(West), Mumbai400 028.
2. Mr.Mahesh Ganpat Sahay Gupta
Age about 54 years An Hindu
Indian Inhabitant, Occupation: Businessman
Add:flat no.9, 5th floor, Chandan Niwas,
M.V.Road, Andheri East,
Mumbai400 069
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2 Suit No.9488/1989
3. Mr.Khemraj Ganpat Sahay Gupta
Age about 46 years, An Hindu,
Indian Inhabitant, Occupation: Businessman
R/o. Flat no.A/303, Plot no.53, Mangal Tower
Sector17, Vashi, Navi Mumbai
4. Mrs.Vidhya Gupta
Age about 46 years An Hindu
Indian inhabitant,R/o. Long Bourne Dlive Apartment No.607
Etobicokz On, Canada, MSR2M7.
5. Mr.Devraj Ganpat Sahay Gupta
Age about 43 years An Hindu
Indian inhabitant, Occupation:Businessman
Add: flat no.16, 3rd floor,
Shri Sahayog CoHousing Society
M.V.Road, Andheri(East),
Mumbai400 069
6. Mr.Madanraj Ganpat Sahay Gupta
Age about 40 years An Hindu
Indian inhabitant, Occupation: Businessman
residing at Flat no.1 & 2, Shiv
Niketan, M.V.Road, Andheri(E),
Bombay 400 069.
7. Mr.Ashok Ganpat Sahay Gupta
Age about 52 years An Hindu
Indian inhabitant, Occupation: Businessman
Add: Flat No.1401 at Tower III,
Raheja Tipco Heights, Rani Sati Marg,
Malad(East), Mumbai400 097. ..Defendants
Plaintiff alongwith her C.A.
Ld. advocate Mr.Barde for defendant no.1
Ld. advocate Mr.Rajesh Singh for defendant nos.2, 5 to 7.
CORAM : HIS HONOUR JUDGE
SHRI M.SALMAN AZMI
(C.R.NO.01)
DATE : 21st DECEMBER, 2019
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3 Suit No.9488/1989
ORAL ORDER
1. This notice of motion is tendered by the plaintiff for
passing exparte decree in favour of the Lrs of original
defendants and for striking of new written statement and
examinationinchief of defendants dated 16/12/2019.
2. Heard.
3. The plaintiff contended that Lrs are substituted at the stage
of judgment. They have no right under The Code of Civil
Procedure(hereinafter referred to as C.P.C) and they have
been added as per order passed on 29/10/2015. They
have no right to file new written statement and they have
no independent right to file pleading without substituted
L.Rs, of the deceased defendant no.1 Shri Upendra Singh.
The plaintiff has carried out amendment to bring the
substituted Lrs under Order 22 Rule 4 of the C.P.C. of the
deceased defendants i.e. Upendra Shreedutt Singh
alongwith legal heirs on record. The defendant No.2, 5 to
7 failed to make out a case and their pleading and evidence
is required to be strike of under order VI Rule 16 of the
C.P.C.
4. The plaintiff in support of her contention, placed reliance
upon the judgment of Hon'ble Supreme Court in the case of
Abdul Razak(dead) through Lrs. And others V/s Mangesh
Rajaram Wagle and others dated 07/01/2010, wherein
Hon'ble Supreme Court held that striking off the pleadings
of the Lrs in the written statement filed, they are
inconsistence and beyond the scope set up by the original
defendants and therefore bound to be discarded. The
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4 Suit No.9488/1989
plaintiff also placed reliance upon the judgment of the
Hon'ble Bombay High Court in the case of H.V.Agarwal &
anr V/s Burjor R.Joshi and others dated 10/04/2015
wherein it is held that those defendants who have not filed
any written statement and also have not adopted any
written statement of any defendant shall not be allowed to
make out their own case and to prove it because no such
case is shown on pleadings.
5. In the case in hand, the exparte order against defendant
nos.2,5 to 7 was set aside and they were allowed to file
written statement. Consequently they filed the written
statement. Therefore, the law cited in the case of
H.V.Agrawal(supra)is not applicable in the present case.
Even the plaintiff has challenged the said order in the
notice of motion no.3646/2018 before the Hon'ble High
Court. The plaintiff placed reliance upon the judgment of
Hon'ble Delhi High Court in the case of Mrs.Binu Anand
Khanna V/s Ratan Tara and others decided on
01/10/2013. How the said judgment is applicable to the
present case, I fail to understand. The plaintiff also placed
reliance upon the judgment in the case of Ambika Prasad
V/s Chandrika Prasad of Hon'ble Madhya Pradesh High
Court dated 03/05/2017. I failed to understand how the
ratio is applicable.
6. The defendants have filed reply to the notice of motion.
They contended that the order has been challenged and
defendants appearing in the Court are required to give an
opportunity.
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5 Suit No.9488/1989
7. As per order VI, Rule 16 of the C.P.C. the Court can strike
out the pleadings at any stage. But for striking out the
pleadings the contingency in the Order VI Rule 16 of the
C.P.C. has to be made out. The plaintiff failed to point out
that the pleadings of defendant nos.2, 5 to 7 are
unnecessary, scandalous, frivolous, or vexatious. Even it is
not highlighted as to how the prejudice is caused to the
plaintiff. There is nothing to demonstrate that the
pleadings of these defendants are delaying the fair trial and
is abuse of process of law.
8. Therefore, there is no question of striking of the defence of
defendant nos.2,5 to 7. Nothing has been pointed out that
their written statement is contrary to the written statement
of original defendants. Hence, notice of motion needs no
consideration. Accordingly, it is expedient to pass
following order:
ORDER
1.N/M no.4838/2019 stands rejected.
2.Cost in the cause.
3.N/M No.4838/2019 is disposed off accordingly.
(M.SALMAN AZMI)
Judge,
Date: 21/12/2019. City Civil Court, Gr.Bombay
Dictated on : 21/12/2019
Transcribed on : 27/12/2019
Signed on : 02/01/2020
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'CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER”.
02/01/2020 at 5.20 pm.
MRS.T.C.KAMBLE
Name of the Judge HHJ SHRI M.S.AZMI, CR NO.1
Date of Pronouncement of
judgment/order
21.12.2019
Judgment and order signed by P.O. 02.02.2020
Judgment/order uploaded on 02.02.2020
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