1 abs IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO. 931 OF 2009 IN SUIT NO. 709 OF 2007 Vrushali Vikas Ghate .. Plaintiff V/s Anagha M. Kocharekar & Ors. .. Defendants Mr. T.G. Vora i/b M/s Tamhane & Co. for the plaintiff. Mr. J.M. D’ Silva for defendant nos.1 to 3. CORAM : D.G. KARNIK, J. DATE : 25TH JUNE 2009 P.C. : 1. This motion is taken out by the plaintiff requesting the Court to take action against the defendants for making a false statement on oath in the affidavit in reply dated 19th April 2007 filed in Notice of Motion No.974 of 2007. 2. Notice of Motion No.974 of 2007 was taken out by the applicant- 2 plaintiff for appointment of the Court Receiver as a receiver for the suit flat bearing flat no.5 in “Shivneri Building” (for short “the suit flat”). The motion was opposed by the defendants by filing an affidavit in reply. In paragraph 4 of the affidavit in reply, the defendants inter alia stated "The Flat No.5 is vacant, and for the purpose of cleaning and maintaining the same, it has been permitted to Mr. Arvind Kocharekar to take care thereof”. 3. According to the plaintiff, the above statement is false and the flat has been let out to Mr. Arvind Kocharekar and therefore action should be taken against the defendants. 4. Learned counsel for the plaintiff further invited my attention to the statement made in paragraph 14 of the affidavit of in reply to the following effect: "The said Flat No.1 (which is below the suit flat) is standing in the name of Mr. Arvind Kocharekar. It is specifically denied that the suit Flat No.5 is being in use illegally by the said Arvind Kocharekar. The said Arvind Kocharekar is admittedly, nephew of Late Mr. Mohan Kocharekar, residing in Flat No.1 and being nearest relative, he has been informed to take care of the suit flat for cleaning, maintaining purpose as has been required." 3 Inviting my attention to the Receiver's report, learned counsel submitted that the Receiver has clearly reported that Mr. Arvind Kocharekar is in possession of the suit flat and it proves that the aforesaid statements made by the defendants in their affidavit are ex-facie false. 5. It cannot be said at this stage and without recording oral evidence that the aforementioned statements made in the affidavit in reply are false. It is not that the defendants had totally denied the occupation of the suit flat by Mr. Arvind Kocharekar. They admitted that Mr. Arvind Kocharekar was in occupation of the suit flat but contended that he was allowed to take care thereof. They did not deny the occupation of the suit flat by Mr. Arvind Kocharekar altogether. It was their contention that Mr. Arvind Kocharekar was a caretaker whereas according to the report of the Court Receiver, he was in possession. The nature of possession of Mr. Arvind Kocharekar is a disputed question of fact. It cannot be said without trial whether the statements made in the affidavit in reply are false statements made deliberately to mislead the Court. They are the contention of the parties and the contentions regarding the nature of occupation of the suit flat by Mr. Arvind Kocharekar. 7. For these reasons, I am of the view that the statements extracted above are not ex-facie false. Truth or falsehood thereof can be determined only 4 after trial. The motion is, therefore, disposed of with liberty to the defendants to take out appropriate motion, if so advised, after recording of the evidence and decision of the suit. (D.G. KARNIK, J.)