JUDGMENT :

1. Rule. Rule made returnable forthwith.

2. The learned counsel for the respondents waives service. Heard finally by consent of the parties.

3. The challenge in this petition, is to the order dated 23/10/2019 passed by the learned Small Causes Court at Mumbai in MARJI/328/2019. By the said order, all that the Small Causes Court has done, is to issue a notice to the respondents therein (the original plaintiff and the defendant No.2).

4. The first respondent, had filed a Interpleader Suit No.1011/2011 against the petitioner (defendant No.1) and the second respondent (defendant No.2).

5. The learned Small Causes Court has dismissed the Suit by a judgment and order dated 25/2/2014. That judgment is not shown to be challenged any further.

6. The petitioner (defendant No.1) claims that during the course of evidence in the said Suit, Mr. Alpesh Hasmukh Sheth, who was examined on behalf of the second respondent, a false statement was made on oath, to mislead the Court, which can be seen from para 12 of the affidavit in examination-in-chief. It is in these circumstances that the petitioner filed an application being Misc. Application (St) No.2602/2019 before the Small Causes Court under Section 340 of the Code of Criminal Procedure (‘the Cr.P.C.’ for short). The petitioner wants action being taken against Mr. Alpesh Sheth under Section 340 of Cr.P.C. According to the petitioner, there is a delay of 949 days in filing the said application and therefore, a separate Misc. Application (St) No.2603/2019, was filed for condonation of delay in filing the application under Section 340 of Cr.P.C. The learned counsel for the petitioner, pointed out that the order of issuing notice which is impugned in this petition, is passed on the application for condonation of delay.

7. I have heard Mr. Abhinav Chandrachud, the learned counsel for the petitioner and Mr. J. S. Kini, the learned counsel for the respondent No.2. Perused record.

8. Mr. Chandrachud, the learned counsel for the petitioner has placed reliance on the decision of the Supreme Court in the case of Pritish Vs. State of Maharashtra & Ors. (2002) 1 SCC 253 in order to submit that the Court is not required to issue notice or afford any opportunity of hearing to the person against whom an action/complaint under Section 340 of Cr.P.C. might be filed, before initiating the prosecution. It is submitted that the object of the preliminary inquiry under sub-section 1 of Section 340 of Cr.P.C., is not to find, whether a person is guilty or not. The only object is to decide whether it is expedient in the interest of justice to inquire into the offence It is thus submitted that the person against whom a complaint under Section 340 of Cr.P.C. is proposed to be filed, is not entitled to a right of hearing and therefore, even in the application seeking condonation of delay in filing such application under Section 340 of Cr.P.C., no notice could have been issued. In the submission of Mr. Chandrachud, when the person proposed to be proceeded against is not entitled to a notice in the main application under Section 340 of Cr.P.C., there is no question of issuing a notice even in an application for condonation of delay in filing the main application. It is submitted that if such notice is issued on the application for condonation of delay, it would lead to an incongruous situation where the person would be heard in the application for condonation of delay, however, once the delay is condoned, he would not be required to be heard. It is submitted that such an interpretation would not be acceptable.

9. Mr. Kini, the learned counsel for the respondent No.2 has submitted that the main application under Section 340 of Cr.P.C. is itself vexatious. He has pointed out that there are several instances where the petitioner has filed such vexatious application/proceedings and this is one more attempt to vex and annoy the respondent. He submitted that even otherwise the impugned order merely issues a notice and canno