Final Order 2

Order Details: Notice of Motion
Pdf Text: NM No.490119 1 SUIT NO. 7417 OF 2004
MHCC010133962019
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO. 4901 OF 2019
IN
NOTICE OF MOTION NO.1508 OF 2018
&
NOTICE OF MOTION NO.2893 OF 2018
IN
SUIT NO. 7417 OF 2004
Ajay Sohanlal Jhuria ] ...Plaintiff.
Versus
State of Maharashtra & Others ]...Defendants.
And
Ajay Mahadeo Bhondve ]…Respondent.
Appearance:
Ld Advocate Niranjan Shimpi for plaintiff.
Ld. Advocate Parimal Shroff for Defendant no. 11,11(b) and 11(c).
Ld. Advocate Mahesh Vishwakarma @ Chandramore for Defendant no.2
to 7/MCGM.
CORAM : K.P. KSHIRSAGAR
JUDGE, (C.R.NO.08)
DATE : 01/12/2022
ORAL ORDER
1) Plaintiff has taken out present notice of motion for taking
appropriate action in accordance with the law against defendant No.3 to
7 and respondent for committing perjury.
2) Perused the notice of motion, affidavit in support of notice
of motion, affidavit in reply of respondent and defendant No.11, 11(b)
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NM No.490119 2 SUIT NO. 7417 OF 2004
and 11(c) affidavit in rejoinder of plaintiff and record. Heard arguments
advanced by Ld Advocate for plaintiff and Ld Advocate for defendant
No.2 to 7 and respondent and Ld Advocate for defendant No.11, 11B
and 11C.
3) Ld Advocate for plaintiff argued that respondent who is the
authorized representative of defendant No.2 to 7 in his affidavit in
support of notice of motion No.1508/18 taken out by defendant No.2 to
7 and in his affidavit in support of notice of motion No. 2893/18 taken
out by defendant No.2 to 7 deliberately and knowingly made false
statement in para No.05 and 21 of the affidavit regarding grant of
permission of change of user as per order dtd.24/9/09 and the fact that
proposal of defendant No.11 was considered on production of NOC from
the Urban Development Department. The defendant No.4 as per its letter
dtd.29/10/12 informed that defendant No.4 has not issued NOC for
change of user nor regularized the same as per proposal of Greenlawns
School of defendant No.11. The respondent has made the above false
statements with full knowledge and consent of defendant No.3 to 7 with
a view to prevent closure of the school run in the suit property by the
Trustees of defendant No.11. Therefore, plaintiff prayed for taking
action against defendant No.3 to 7 and respondent for perjury. Ld
Advocate for plaintiff kept his reliance on the following judgments:
1)Kishorbhai Gandubhai Pethani vs State of Gujarat & Anr,(2014) 13
SCC 539;
2) Sethi Auto Service Station & Anr Vs Delhi Development Authority &
Ors, (2009) 1 SCC 180.
Court has gone through the observations therein.
4) On the other hand, Ld. Advocate for defendants No.2 to 7
and respondent argued that in the year 2018 plaintiff's evidence is
already closed. The notice of motion No.1508/18 taken out by
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NM No.490119 3 SUIT NO. 7417 OF 2004
defendants No.2 to 7 was not pressed by defendants No.2 to 7 on
13/7/18. Therefore, question of making false statement does not arise.
Thereafter, notice of motion No.2893/18 was taken out by defendant
No.2 to 7 and it was dismissed on 11/10/18. Respondent or defendants
No.2 to 7 have not made any false or contrary statement in the affidavit
in support of notice of motion No.1508/18 or notice of motion
No.2893/18 deliberately/knowingly. The allegations in the present
notice of motion are false. Plaintiff is trying to harass the State
machinery. The annexure I to the affidavit in rejoinder of the plaintiff
reveals that the proposal was approved. Already defendant No.11, 11B
and 11C obtained the NOC of defendant No.4. Therefore, Ld. Advocate
for defendants No.2 to 7 and respondent submitted that notice of motion
be dismissed.
Ld. Advocate for defendants No.2 to 7 and respondent
relied on the following citations:
1) Chajoo Ram Vs Radhey Shyam & Ors, MANU/SC/0082/1971;
2) Umrao Lal vs State, AIR 1934 ALL 424
Court has gone through the observations therein.
5) Ld. Advocate for defendants No.11, 11B and 11C argued
that proposal submitted by these defendants for regularization of school
was approved as per Development Control Regulation, 1967. As per
Exh.1 to the rejoinder i.e. internal note filed by plaintiff it is clear that
plaintiff was aware about the said internal note and clarification issued
by M.O.E.F. and applicability of Development Control Regulation 1967
to the Greenlawns School proposal for regularization. There are no
contrary statements of the same person on oath in the present matter.
Prima facie plaintiff failed to demonstrate that the respondent has made
false statements deliberately and consciously with intent to give false
evidence. Therefore, Ld. Advocate for defendants No.11, 11B and 11C
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NM No.490119 4 SUIT NO. 7417 OF 2004
submitted that notice of motion be dismissed. Court has gone through
the written submission of defendants No.11,11B and 11C.
Ld. Advocate for defendants No.11, 11B and 11C kept his
reliance on the following citations:
1) Chandrapal Singh & Ors. vs Maharaj Singh & Anr, (1982) 1 SCC 466;
2) R.S. Sujatha vs State of Karnataka, (2011) 5 SCC 689;
3) Aarish Asgar Qureshi vs. Fareed Ahmed Qureshi & Anr, (2019) 18
SCC 172;
4) M/s. Muneer Enterprises vs Ramgad Minerals & Mining Ltd. & Ors,
(2015) 5 SCC 366.
Court has gone through the observations therein.
6) Following points arise for determination and court has
recorded its decision thereon for the reasons stated there under:
Points Decision
(i) Whether in the present matter it is expedient in the
interest of justice that inquiry should be made into
offence of perjury in relation to the present
proceedings?
No.
(ii) What Order? As per final
order.
REASONS
As to Point No.1:
7) Plaintiff has filed this suit for directing defendants No.1 to
11 to pay damages to the plaintiff, for permanent injunction restraining
defendants No.1 to 7 from granting any sanction, permission or
regularizing any proposal etc. In the present matter admittedly land on
which the suit building is constructed is belonging to the MCGM.
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NM No.490119 5 SUIT NO. 7417 OF 2004
Admittedly, the suit premises is situated in the residential area.
Admittedly, defendant No.11, 11B and 11C are running the Greenlawns
School on the ground floor and second floor of the suit building. It is
also admitted fact that defendants No.11, 11B and 11C had submitted
proposal for regularization of Greenlawns School in the year 2003 with
the defendant No.6. Admittedly, earlier the said proposal was rejected
and later on the proposal for regularization was approved on 24/9/09
by the defendant No.6.
8) From the Exh.1 to the affidavit in rejoinder of plaintiff it
appears that as per proposal of regularization of Greenlawns School it
was proposed to regularize the change of user of Greenlawns School
subject to NOC from defendant No.4 and later on it was approved.
9) From the copy of affidavit in support of notice of motion
No.1508/18 and 2893/18 it appears that respondent has stated on
solemn affirmation that in para No.5(O) respondent has stated that the
said proposal of defendant No.11 for regularization of change of user of
primary as well as secondary school was approved and permission of
change of user was granted on 24/9/09. In para No.5(O) respondent
No.7 has stated that defendants have after receipt of NOC from Urban
Development Department approved their proposal and issued necessary
permission of change of user to the defendant No.11 to run the school
up to tenth class. Above affidavit was affirmed by respondent in
February 2018. From the roznama dtd.13/7/18 it appears that the
Notice of Motion No.1508/18 was not pressed with liberty to file fresh
notice of motion and thereafter, defendants No.2 to 7 had taken out
notice of motion No.2893/18 for setting aside the no W/S order
dtd.15/7/16 and it was dismissed. Thus, statements made in affidavit in
support of notice of motion No.1508/18 and 2893/18 by the respondent
on behalf of defendants No.2 to 7 were not filed as evidence in the
present matter. Exh.7 to the present notice of motion reveals that as per
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NM No.490119 6 SUIT NO. 7417 OF 2004
letter dtd.24/9/09 the defendant No.6 had informed the architect of
defendant No.11 that the plan for regularization of existing Greenlawns
School, Worli, Mumbai at Kanhaiya Kunj is approved subject to
condition that 1)NOC from Assistant Commissioner (Estate) shall be
submitted within six months from the date of approval. Therefore, prima
facie the statement of respondent in affidavit in para No.5(O) about
approval of the proposal of change of user plan vide order dtd.24/9/09
prima facie does not appear to be false statement. In para No.13 of the
affidavit in support of notice of motion No.1508/18 respondent stated
that after receipt of NOC from the Urban Development Department
proposal was approved. Annexure I to the affidavit in rejoinder of the
plaintiff reveals that there is reference of M.O.E.F. clarification
dtd.18/8/06 whereby 1967's rules will be applicable in C.R.Z. area and
in view of said clarification obtaining NOC from the Urban Development
Department was not necessary requirement and only NOC from the
Estate department was condition precedent for grant of approval. The
respondent has not made any statement that defendants had obtained
the NOC from Estate Department as per order dtd.24/9/09. Therefore,
the statements in the affidavit in support of notice of motion
No.1508/18 and 2893/18 prima facie do not appear inconsistent with
the letter dtd.29/10/12 issued by the MCGM. Therefore, prima facie the
above statement of the respondent also does not appear to be false
statement.
10) From the matter on record it appears that plaintiff failed to
make out prima facie case of deliberate falsehood on matter of substance
and there appear no reasonable foundation for the charge. Admittedly,
in the present matter respondent has not made contrary statements on
oath. Moreover, as observed in the case of Umrao Lal vs State cited
supra relied by defendant 'Mens rea' is an essential ingredient of the
offence of perjury. Prima facie there is nothing to show that respondent
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NM No.490119 7 SUIT NO. 7417 OF 2004
No.7 on behalf of defendants No.2 to 7 deliberately and knowingly made
false statement. Falsity can be alleged when truth stands out glaringly
and to the knowledge of person who is making false statement. From the
matter on record there appear no prima facie case of deliberate
falsehood on matter of substance. Prima facie there is no material to
show that respondent on behalf of defendants No. 2 to 7 made false
statement deliberately and consciously which found to be non false as a
result of comparing it with unimpeachable evidence, documentary or
otherwise.
11) In case of R.S. Sujatha vs State of Karnataka of Hon'ble
Apex Court referred the judgment in case of Chajoo Ram vs. Radhey
Shyam wherein the Apex court held that, “....No doubt giving of false
evidence and filing false affidavits is an evil which must be effectively
curbed with a strong hand not to start prosecution for perjury too readily
and too frequently without due care and caution and on inconclusive and
doubtful material defeats its very purpose. Prosecution should be ordered
when it is considered expedient in the interests of justice to punish
delinquent and not merely because there is some inaccuracy in the
statement which may be innocent or immaterial. There must be prima facie
case of deliberate falsehood on a matter of substance and the court should
be satisfied that there is reasonable foundation for the charge.”
12) The facts of the judgments relied by the plaintiff are in the
humble opinion of this court different from the facts of the present suit.
Therefore, same are not applicable. Considering the matter on record as
a whole nature of the suit and the purpose for which affidavit in support
of notice of motion No.1508/18 and 2893/18 were filed by respondent
on behalf of defendants No.2 to 7 and the fact that plaintiff failed to
make out prima facie case of deliberate falsehood on a matter of
substance and failed to show reasonable foundation for charge, this
court find that it is not expedient in the interest of justice to make
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NM No.490119 8 SUIT NO. 7417 OF 2004
inquiry in to the offence of perjury or to take any action against
defendants No.3 to 7 and respondent as sought. Therefore, present
notice of motion is devoid of merit. As such present notice of motion is
liable to be dismissed. Therefore, court proceeds to pass following
order:
ORDER
1) Notice of Motion No. 4901 of 2019 is dismissed.
2) Notice of Motion No. 4901 of 2019 is disposed off accordingly.
Date :01/12/2022. (Shri. K.P. Kshirsagar)
Judge
City Civil Court,
Gr. Mumbai.
Dictated on :1/12/2022.
Typed on : 5/12/2022.
Checked on :7/12/2022.
Signed on:8/12/2022.
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NM No.490119 9 SUIT NO. 7417 OF 2004
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
9/12/2022. Mrs. S.A. Shekade.
Name of the Judge (With Court room
no.)
SHRI K.P. Kshirsagar (Court Room
No.08)
Date of Pronouncement of
JUDGMENT/ORDER
01/12/22.
JUDGMENT/ORDER signed by P.O.
on
08/12/22.
JUDGMENT/ORDER uploaded on 09/12/22.
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