Final Order 1

Order Details: Notice of Motion
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MHCC010133232019 Presented on : 19.12.2019
Registered on : 19.12.2019
Decided on : 09.12.2024
Duration : 04 11 21
Years Months Days
IN THE COURT OF CITY CIVIL FOR GREATER BOMBAY AT BOMBAY
NOTICE OF MOTION NO. 4885 OF 2019
IN
SUIT NO. 540 OF 2017
(CNR NO. MHCC010133232019)
1
2
Ahmed Sayed
Son of Shammi Burhanuddin Sayed
earlier known as Ikrammuddin
Burhanuddin Sayed, Aged : 46 years,
Residing in A-Block, Ground Floor,
Khalak Dina Terrace Bldg (also known as
Hasan Manzil), Gowalia Tank, A. K. Marg,
Mumbai 400 036.
Shammi Sayed
(Earlier known as Ikramuddin Sayed)
Sone of Late Mr. Burhanuddin Sayed
Aged 72 years,
Residing in A-Block, Ground Floor,
Khalak Dina Terrace Bldg (also known as
Hasan Manzil), Gowalia Tank, A. K. Marg,
Mumbai 400 036. …. Plaintiffs
Versus
1 Pragnesh Shah
Son of Late Arvind Shah alias
Arvindkumar, Age around 47 years,
Residing at 24, Warden Court, 79/81,
Gowalia Tank, A. K. Marg,
Mumbai 400 036.
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2 August Kranti Co-operative Housing
Society
A Co-operative Housing Society duly
registered under the provisions of
Maharashtra Co-operative Societies Act,
1960 having office at 79/81, Warden
Court, Gowalia Tank, A. K. Marg,
Mumbai 400 036. …. Defendants
CORAM : HIS HONOUR THE PRINCIPAL JUDGE,
SHRI A.SUBRAMANIAM
C.R.NO..
: 19
DATE : 09th DAY OF DECEMBER, 2024
Appearances :-
Plaintiff No.1 in person and also for plaintiff No.2.
ORAL ORDER
1. By order dated 26.11.2024, I pointed out to the plaintiff with
regard to maintainability of concerned Notice of Motion in view
of pendency of Appeal from order. The Notice of Motion was
heard only on said ground of maintainability.
2. Present Notice of Motion has been preferred by plaintiff
contending out the various facts as stated in the plaint. It is
further pointed out that by affidavit in reply dated 12.04.2017
there was alleged existence of memorandum relating to three
buildings. By affidavit in rejoinder the copies were sought and by
additional rejoinder dt. 31.01.2018 the copies of memorandum
and other documents were supplied. On 06.07.2018, Court was
mislead by the defendants and passed impugned order on various
grounds. It is alleged that the said notice of Motion came to be
rejected by my Ld. Predecessor by speaking order. It is further
contended that there is fraud on Court so much so that the order
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is based on fact that memorandum is only for maintenance or
looking after common passage. It is further pointed out that
memorandum on its own does not seek to maintain, construct,
look after common passage and does not confer any right. It is
further pointed out various facts of fraud on Court. The order is
dated 06.07.2018. It is contended that thereafter written
statement came to be filed and fraud is revealed from the
documents to the Court and hence present Notice of Motion is
filed on 17.12.2019. On my query, it was pointed out that
plaintiff has challenged order in NM dated 06.07.2018 before
Hon’ble High Court by preferring an Appeal from order. Now,
plaintiff seeks following reliefs namely to recall the order dt.
06.07.2018 passed in Notice of Motion No. 936 of 2017 and said
Notice of Motion be placed on board for hearing. In such
circumstances, I called upon plaintiff to argue upon
maintainability of this Notice of Motion in view of pendency of
Appeal from Order.
3. Heard plaintiff No.1 in person who also appears on behalf of
other plaintiffs. He vehemently pointed out the Judgments of A. V.
Papayya Sastry and Ors V/s Govt of A.P and Ors (2007) 4
Supreme Court cases 221, Neerja Realtors Private Limited V/s
Janglu through legal representatives (2018) 2 Supreme Court
cases 649 and Dadu Dayal Mahasabha V/s Sukhdev Arya and Anr
(1990) 1 Supreme Court cases 189. Wherein it has been pointed
out that if a fraud is played on the Courts, said order become non
existing and secondly there is no principle of merger applicable in
such cases so that if fraud is pointed out the order of the
appellate Court will not be bind trial Courts. It is necessary to
point that having considered these submissions, the important
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aspect of difference in present case is that Appeal from order is
still pending before Hon’ble High Court. The legality of said order
is still pending before Hon’ble High Court. When an order is
impugned before Hon’ble High Court and it is seized of the said
matter, it would not be appropriate for this Court to intervene
with regard to said order and more over it is functous officio so
far as that proceedings on NM are concerned. Any aspect of
factum relating to said order would be discretion of Hon’ble High
Court to deal with it pending the appeal before it. Whether
aspects raised in present Notice of Motion are to be considered or
not and whether it vitiates or creates new grounds are at present
for consideration only within the jurisdiction of Hon’ble High
court, if any. It is for Hon’ble High Court to decide whether these
points are to be considered or not or whether these points can be
raised or not. It was tried to be contended by plaintiffs that if this
is pointed out, Hon'ble High Court would remand the matter.
That is discretion and powers of Hon'ble High Court as an
appellate Court to remand the matter and it is for this sole reason
that it has to be appreciate that this Court cannot deal or interfere
with said order or set aside or recall it ,pending the appeal before
Hon’ble High Court. In such circumstances, I hold that present
Notice of Motion is not maintainable in view of pendency of
appeal of said order which is being recalled by said Notice of
Motion. Hence, I pass following order.
O R D E R
1. Notice of Motion No. 4885 of 2019 in Suit No. 540 of 2017
is rejected on ground of maintainability in view of
pendency of Appeal from order (A.O).
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2. It is clarified that this Court has not considered any factual
aspects raised in said Notice of Motion.
3. Accordingly, Notice of Motion is disposed off.
DATE : 09.12.2024 (A.SUBRAMANIAM)
PRINCIPAL JUDGE
CITY CIVIL COURT, MUMBAI.
(JO CODE MH01711).
Dictated and transcribed on : 09.12.2024.
Checked and signed on : 24.12.2024.
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"CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER"
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
(Grade-III)
DATE : 24.12.2024 at 06.55 pm Mr. Mohit M. Patange
Name of the Judge (with Court no.) : SHRI A.SUBRAMANIAM. C.R.NO.19.
Date of pronouncement of judgment/order : 09.12.2024
Judgment/order signed by the P.O. on : 24.12.2024
Judgment/order uploaded on : 24.12.2024
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