Harendra Mahendrakumar Panalal And ANR v. Bharat Mahendrakumar Panalal And 2 Others

Atul

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO. 184 OF 2018 IN CHAMBER ORDER NO. 1273 OF 2017 IN SUIT (L) NO. 137 OF 2017 Harendra Mahendrakumar Panalal & Anr ...Plaintiffs

Versus

Bharat Mahendrakumar Panalal & Ors ...Defendants Mr Gauraj Shah, with Reshma Chitnis-Potdar, & Shaunak Gokhale, i/b Chitnis Vaithy & Co., for the Plaintiffs. Mr Naushad Engineer, with Murtaza Federal & Nikita Mishra, i/b Federal & Rashmikant, for Defendant No. 1.

CORAM: G.S. PATEL, J DATED:

PC:- 1.

This Notice of Motion is a classic case of a gross abuse of the process of this Court. It shows how our routine administrative processes are abused and wrongful advantage is taken of them. 2.

The Notice of Motion seeks that SJ Kathawalla J's order dated 21st December 2017 be quashed and set aside. Here is that order:

"1.

Heard the Learned Advocate appearing for the Defendant No. 1. Perused the Chamber Order and the Affidavit filed in support thereto. The Suit was listed before the Prothonotary and Senior Master for rejection on 20th June 2017. Since none appeared for the Plaintiffs, the following order was passed:- "Plaintiff to remove office objections on Suit and get the same numbered and registered on or before 11-07-2017, failing which Suit to stand rejected under O.

S.

Rule 986."

2.

There are 22 objections raised by the Court office. However, none have been removed by the Advocate for the Plaintiffs till date. No reason is given in the Affidavit in support to the Chamber Order, as to why the Plaintiffs and/or their Advocates were absent before the Prothonotary and Senior Master when the matter was listed for rejection on 20th June 2017. Even today none appear for the Plaintiffs. In view thereof, the above Chamber Order stands dismissed with costs of Rs. 10, 000/- payable by the Plaintiffs to the Defendant No. 1. The Chamber Order is accordingly disposed off.

"

3.

The Affidavit in Support of this Motion predictably blames the Plaintiffs' Advocates. This is on the basis that their Advocates missed the matter when it was listed. There is no explanation whatsoever to Kathawalla J's observations.

4.

It gets worse. There is an averment in paragraph (k) at page 8 that the Plaintiffs have complied with "almost all objections and that this can be verified from the record". I have indeed verified the record. The objections are noted behind volume IV of the Plaint. On

two pages, there are 22 objections. On an earlier page there is a further noting. As to the 22 objections, there is ostensible compliance with objection No. 8, which relates to the Vakalatnama; objection No. 9 which relates to corrections to be initialled by the Advocates; objection No. 12, regarding missing items in the index; objection No. 17 in regard to the verification being in improper format; and objection No. 18 which says that in paragraph 45, the name of the Constituted Attorney is not mentioned. Here are scans of the two pages (overleaf)

5.

The original Court records thus do not show compliance with other objections. In particular, objection No. 20 is that page 985 is missing. It is still missing. There are no averments as required in paragraph 13. Page No. 45 and paragraph 34 are missing (objection No. 15). This list goes on almost endlessly.

6.

I do not understand how the Plaintiffs can honestly state today that "almost all objections" have been complied with. Indeed, objection Nos. 4 and 5 relate to illegible copies and their official translation. Mr Shah is instructed to state that the documents are so illegible that they can be read only by family members. Even a translator cannot read these documents. I do not pretend to understand what that is supposed to mean, if anything. Mr Shah says that of several tens of documents mentioned in objection Nos. 4 and 5, some, but not all, have now been retyped with difficulty and been got translated. That is too little too late. 7.

The Suit claims to be for partition and assails transactions going back to the 1980s. This practice of filing suits with all manner of objections and then delaying the removal objections has several effects, none of them very good. (For instance, there are still filings on lodging numbers going back nearly a decade in various departments). The idea is to lock up properties on the ground that there is a pending litigation. A plaintiff has the responsibility to ensure that his filing is complete, and that all objections are removed in a timely fashion.

8.

Mr Engineer points out that after the Plaintiffs filed Notice of Motion on 19th January 2018, they did not care to serve it for several months, until 28th March 2018. Costs ordered have even now not been paid - and for this, the non-removal of office objections is wholly irrelevant. There was no stay on payment of costs imposed, and the Plaintiffs cannot decide for themselves when to pay costs or whether to pay them at all. This is yet another reason not to show the Plaintiffs the slightest indulgence. 9.

I see no reason whatsoever to grant Plaintiffs any indulgence. Mr Shah requests that liberty be reserved to the Plaintiffs to file a fresh suit. That cannot be done; such liberty is not reserved merely for the asking.

10. The Notice of Motion is dismissed. No costs. (G. S. PATEL, J)