Dost Mohammed Gulam Mohammed ... vs Mohammed Hayat Khan
2021 Latest Caselaw 1029 Bom

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ISM
                  IN THE HIGH COURT OF JUDICATURE AT BOMBAY

                                CIVIL APPELLATE JURISDICTION

                                 WRIT PETITION NO. 91 OF 2021

      Dost Mohammed Gulam                                       ....Petitioner

              V/s.

      Mohammed Hayat Khan                                       .....Respondents

      Mr. Pradeep Thorat for the Petitioner
      Mr. Suraj Kudalkar for Respondents


                               CORAM :       NITIN W. SAMBRE, J.

                               DATE:         JANUARY 15, 2021.

      P.C.:

      1]      Heard.




      2]      Special      Civil      Suit   No.   1322   of   2020       was      initiated       by

Respondent-Plaintiff for declaration that he is bonafde purchaser of

the Suit property and also for injunction. In the said Suit,

Applications Exh. 3 & 4 are moved by Respondent-Plaintiff under

Order VII Rule 14 (3) praying therein leave to produce compilation of

documents which is annexed with the said Application. Respondent

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also moved another Application on 14/12/2020 for the very same

purpose which is allowed by the impugned order. As such, this

Petition.

3] Mr. Thorat, learned counsel for the Petitioner submits that

Applications which are moved are contrary to the established

procedure as is followed in the Bombay City Civil Court. According to

him, learned City Civil Court while allowing the Application for the

limited purpose of deciding the issue of interim relief has committed

a procedural error as the notice of motion ought to have been taken

out by the Respondent-Plaintiff which should have been supported by

the affdavit. So as to substantiate his contentions, my attention is

invited to provisions of Section 40 & 43 of Bombay City civil Court

Act 1948 and also various forms prescribed under the Rules.

According to him, if the procedural Statute provides for a particular

thing is to be done in a particular way then it has to be done in that

way alone. Petitioner has also placed reliance on the Judgment of this

Court in the matter of Bombay Enamel Works Vs. Purushottam S.

Somaiya reported in [1974] 0 MhLJ 947 so as to substantiate his

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contentions that the procedural law must be followed. According to

him, even the order impugned sans reasons for granting such

permission. He has also drawn support from the Judgment of the

Apex Court in the matter of Iridium India Telecom Ltd. Vs. Motorola

INC. reported in [(2005) 2 Supreme Court Cases 145]. According to

him, Code of Civil Procedure, 1908 is not applicable to the

proceedings on Original Side of the High Court of Bombay and same

is governed by Original Side Rules. Same procedure needs to be

applied to proceedings in Bombay City Civil Court particularly by

adopting and following the procedure laid down in the Rules framed

thereunder.

4] Respondents supported the order impugned.

5]     Considered rival submissions.




6]     When confronted with mandatory nature of provisions, learned

counsel       for     the       Petitioner   submits      that      Court        cannot        be








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discriminatory in proceedings particularly permitting production

documents through Application for the purpose of deciding

injunction Application.

7] It is noticed that in entire gamete of the matter, if any

procedural irregularity is committed by the City Civil Court while

passing the order impugned same has no way prejudiced the

Petitioner-Defendant particularly when the said Court has equally

protected the interest of the Petitioner. It is further required to be

noted that learned counsel for the Petitioner is unable to demonstrate

that provisions as are brought to the notice of this Court are

applicable even to the production of documents that too at the stage

of deciding interim application, much less prejudice if any caused to

him.

8] In the aforesaid background, Judgment cited by the learned

counsel for the Petitioner will be of hardly any assistance as same are

at all not dealing with issue i.e. sought to be canvassed in this

petition.

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9] In the aforesaid background, once the Petitioners can submit

objection to the documents on merit, I do not see any reason which

warrants interference in extraordinary jurisdiction.

10] Petition as such fails, stands dismissed.

11] Time granted by the Court below of two weeks in favour of the

Petitioner shall commence from 25/01/2021.

[NITIN W. SAMBRE, J.]