- 1 - IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION APPEAL NO.73 OF 2008 IN NOTICE OF MOTION NO.1628 OF 2007 IN SUIT NO.2429 OF 1997 Mrs.Pushpa Kadambande. .. Appellant Vs. Naina Deepak Kamani & Ors. .. Respondents -- Shri D.S.Chandnani i/b Lexim Associates for the Appellant. Ms Sheetal Kumar i/b M.M.Patel & Co. for the Respondent No.1. Shri K.L.Vyas, Court Receiver, is present. Shri Shiv Kumar Tulsian, C.A. of the Respondent No.7 in person. -- CORAM : SRI R.M.S.KHANDEPARKAR & SRI P.B.MAJMUDAR, JJ DATED : 18TH JUNE, 2008 P.C. 1. Heard. This appeal arises from the order dated 26th October, 2007 passed in Notice of motion No.1628 of 2007 in Suit No.2429 of 1997. By the impugned order, the notice of motion taken out by the - 2 - appellant has been dismissed. 2. The notice of motion was taken out by the appellant seeking following reliefs:- "(a) that leave be granted to applicant to take out this Notice of Motion for the reliefs as set out hereinbelow ; (b) that the suit as filed by plaintiff is liable to be dismissed and applicant prays for dismissal thereof, inasmuch as :- (i) though applicant is a necessary party she being in occupation/possession/ enjoyment of Flat No.31, situate on ground floor of Ram Niwas building, Pochkhanwala Road, Worli, Mumbai 400 018, subject matter of aforementioned Suit as a tenant thereof, along with defendant No.7, as disclosed in affidavit in support hereof, yet, she is not impleaded as a party defendant for a long span of seven years, obviously for oblique motive of snatching the orders against applicants - 3 - behind her back though not warranted on facts or in law; (ii) the filing of aforementioned suit is masterminded on the basis of fabricated/ concocted facts/ circumstances and documents, as shown in affidavit in support hereof, with oblique motive of snatching the orders from this Hon’ble Court, which plaintiff could not obtain either on facts or in law, which constitutes offence under Section 192 of Indian Penal Code; (iii) Thus the suit as filed is a collusive suit and plaintiff has not approached this Hon’ble Court with clean hands; (c) That the Receiver High Court appointed by this Hon’ble Court vide Order dated 7th Feb. 2000 in Notice of Motion No.2438 of 1997 in aforementioned Suit No.2429 of 1997 be discharged in view of the reasons set out in the affidavit enclosed herewith and all the orders so far passed by the Court Receiver be - 4 - set aside/recalled; (d) that pending hearing and final disposal of the aforementioned Notice of Motion the Court Receiver, High Court, Bombay, respondent herein be restrained from acting on the basis of order dated 7th Feb. 2000 passed by this Hon’ble Court and or on any order so far passed by him; (e) That interim and ad-interim reliefs be granted in terms of prayer clause (d) hereinabove; (f) that the plaintiff and defendant No.1 be directed to pay costs of Rupees five lakhs to the applicant for unnecessarily exposing the applicant to uncalled for and unwarranted litigations for oblique motive of ousting the applicant and others residing with him, particularly when applicant is aged 73 years; (g) that this Hon’ble Court may be pleased to pass such other and further orders, as this Hon’ble Court may deem fit and proper; - 5 - 3. Undisputedly, the appellant is not the party to the Suit No.2429 of 1997 nor there is any prayer in the notice of motion filed before the learned Single Judge for joining her as the party in the said suit. In the absence of the appellant being the party to the suit, the question of entertaining or granting any relief in favour of the appellant in the said suit could not arise, and on that count itself the notice of motion could have been rejected, as has been rightly rejected by the learned Single Judge. 4. The main grievance of the appellant was that the appellant is the tenant in respect of Flat No.31, situate on ground floor of Ram Niwas Building, Pochkhanwala, Worli, Mumbai, along with the Defendant No.7 and that there has been fraud played by the plaintiff whereby the plaintiff seeking declaration that the Defendant No.7 is the trespasser in the said premises and on the strength of the said allegation the plaintiff is seeking to evict the appellant along with the Defendant No.7 from the said premises. 5. Undisputedly, the appellant has filed a substantive suit claiming tenancy rights in relation to the suit premises in the Small Causes Court, Mumbai, and the said suit is pending for final - 6 - adjudication. It appears that there is also some interim order passed in the said suit to safeguard the alleged interest of the appellant in the premises during the pendency of the suit. 6. The learned Single Judge in the impugned order has clearly observed that the grievance which is sought to be made by the present notice of motion was the subject matter of the earlier notice of motion taken out by the Defendant No.7 being Notice of motion No.696 of 2007 and the same was rejected by the learned Single Judge on 28th March, 2007 and the order was confirmed by the Division Bench in the appeal while imposing exemplary costs of Rs.25,000/- against the Defendant No.7. 7. As rightly submitted on behalf of the respondent No.1/original plaintiff, it appears that this is a proxy litigation sought to be initiated by the Defendant No.7 in the name of the appellant and that too without seeking joinder of the appellant as the party to the pending suit between the plaintiff and the Defendant No.7. The grievance which was sought to be made by the Defendant No.7 having already been adjudicated during the pendency of the said suit - 7 - in Notice of Motion No.696 of 2007, it is not permissible to readjudicate the same by taking out another notice of motion in the same suit and more particularly in view of the fact that the order passed in the said notice of motion had already attained finality in the appeal against such order. 8. In the circumstances, we do not find any substance in the appeal and, therefore, the same is liable to be dismissed. 9. We, in fact, find the present notice of motion and the appeal to be an abuse of process of the Court by the appellant. It is undisputed fact that as far as the appellant’s claim for tenancy is concerned, the appellant has chosen an appropriate forum for the same and the matter is being adjudicated before the competent forum in that regard and even the interim relief has been granted in respect of the alleged interest claimed by the appellant in the premises. It is also a matter of record that the Defendant No.7’s attempt to get the order by raising similar dispute has failed to get any favourable order for the Defendant No.7. In the circumstances, we are constrained to reject the present appeal with exemplary costs. The appeal is, therefore, rejected - 8 - with exemplary costs of Rs.10,000/- to be deposited in the Registry within a period of eight weeks from today. The costs being deposited, the same shall be credited to the account of Maharashtra State Legal Services Authority. 10. At this stage, the learned advocate for the appellant prays for stay of the order passed today. As regards the direction to pay the costs, the same is stayed for a period of six weeks from today. As regards the order rejecting the appeal, there is nothing to be executed under the order which has been passed today and, therefore, there is no question of grant of stay to the order passed today. The said request is rejected. ( R.M.S.KHANDEPARKAR, J ) ( P.B.MAJMUDAR, J )