Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM No.31021 IN SUIT No.310019
MHCC010009912021
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO. 310 OF 2021
IN
SUIT NO. 385 OF 2017
Deepak Jayantilal Mehta & Another ] ...Plaintiffs.
Versus
Chandrakant Mehta & Others ]…Defendants.
Appearance:
Ld Advocate Ingule for Plaintiff.
Ld. Advocate J.V. Parmar for Defendant No.1.
CORAM : K.P. KSHIRSAGAR
JUDGE, (C.R.NO.08)
DATE : 10/10/2022
ORAL ORDER
1) Defendant No.1 has taken out present notice of
motion for rejection of plaint under Order 7 Rule 11(d) of Code of
Civil Procedure.
2) Perused the notice of motion, affidavit in support of
notice of motion, affidavit in reply, affidavit in rejoinder and
record. Heard Ld Advocate for plaintiffs and Ld Advocate for
defendant No.1. Court has gone through the written notes of
arguments tendered by the plaintiff.
3) Ld Advocate for defendant No.1 argued that plaintiffs
have filed the present notice of motion for declaration that
-- 1 of 6 --
2 NM No.31021 IN SUIT No.310019
arrangement of December 2005 Exh.A to the plaint is valid
subsisting and binding upon plaintiffs and for declaration that
plaintiffs alone are entitled to have the rent receipt of the room
No.36 transferred in their favour. As per Article 58 of the
Limitation Act period of limitation for filing suit for declaration is
three years. Therefore, considering the nature of the relief it is
clear that present suit is barred by law of limitation. Therefore, Ld
Advocate for defendant No.1 prayed that notice of motion be
allowed. Ld Advocate for defendant No.1 kept his reliance on the
following judgment:
Liverpool & London S.P. & I. Asson vs. M.V. Sea Success I & Anr
dtd.20/11/2003 in Appeal (civil) 5665/2002 of the Hon’ble Apex
Court.
Court has gone through the observations therein.
4) On the other hand, Ld Advocate for plaintiff argued
that cause of action for filing the present suit arose in the year
2010. The cause of action for the purpose of Article 58 of the
Limitation Act accrues only when right asserted is infringed or
there is at least a clear and unequivocal threat to infringe that
right. Moreover, question of limitation is mixed question of law
and facts and therefore it is a triable issue. It is the averments in
the plaint which have to be read as a whole to find out whether
the suit is barred under any law and at this stage while exercising
on power under Order 7 Rule 11, the defence of the defendant in
written statement or in the application of rejection of plaint is
wholly immaterial. The reading of the plaint as a whole exfacie
does not reveal that suit is barred by limitation. Therefore, Ld
Advocate for plaintiff submitted that notice of motion be
dismissed. Ld Advocate for plaintiff kept his reliance on the
-- 2 of 6 --
3 NM No.31021 IN SUIT No.310019
following citations:
1) Daya Singh & Anr vs Gurdev Singh (Dead) by LRs & Ors,
(2010) 2 SCC 194;
2) P.V. Guru Raj Reddy vs P. Neeradha Reddy, (2015) 8 SCC 331;
3) Salim D. Agboatwala & Ors vs Shamalji Oddhavji Thakkar &
Ors, 2021 SCC Online SC 735;
4) Vareed Jacob vs Sosamma Geevarghese & Ors, (2004) 6 SCC
378;
Court has gone through the observations therein.
5) From the matter on record it appears that plaintiff
has filed the present suit for declaration that family arrangement
of September 2005 Exh.A to the plaint is valid, subsisting or
binding upon the plaintiffs and for other declarations and for
other relief of mandatory injunction. It is settled law that at the
stage of exercise of power under Order 7 Rule 11 the averments
in the plaint only are germene and the defence of the defendant
in the written statement or in the application for rejection of
plaint is wholly immaterial. In the case of Daya Singh & Anr vs
Gurdev Singh (Dead) by LRs & Ors cited supra the Hon’ble Apex
court referred the case of C. Mohd Yunus AIR 1961 SC 808
wherein it is held that “The cause of action for the purpose of
Article 58 of the Act accrues only when the right asserted in the
suit is infringed or there is at least a clear and unequivocal threat
to infringe that right.” Therefore, exfacie there appear no
substance in the argument of defendant No.1 that considering the
nature of reliefs prayed in the suit it is clear that cause of action
was arose in September 2005. In the present case the reading of
-- 3 of 6 --
4 NM No.31021 IN SUIT No.310019
plaint as a whole and proceeding on the basis that the averments
therein are correct which is the court is required to do, appears
that cause of action in present suit arose in 2010.
6) In the case of P.V. Guru Raj Reddy vs P. Neeradha
Reddy & Ors. cited supra the Hon’ble Apex Court observed that,
“It is the averments in the plaint that have to be read as a whole
to find out whether it discloses a cause of action or whether the
suit is barred under any law. At the stage of exercise of power
under Order 7 Rule 11, the stand of the defendants in the written
statement or in the application for rejection of the plaint is wholly
immaterial. It is only if the averments in the plaint ex facie do not
disclose a cause of action or on a reading thereof the suit appears
to be barred under any law the plaint can be rejected. In all other
situations, the claims will have to be adjudicated in the course of
the trial.” It cannot be said from the pleading of the plaintiff that
suit is exfacie barred by law of limitation. From the reading of the
plaint as a whole it is clear that it does not disclose that question
of limitation is a pure question of law. As such the question of
limitation in the present suit is a mixed question of law and fact.
As such the question of limitation in the present suit is a triable
issue which will have to be adjudicated in course of trial. In the
case of Salim D. Agboatwala & Ors vs Shamalji Oddhavji Thakkar
& Ors it has been observed that, “In so far as the rejection of
plaint on the ground of limitation is concerned, it is needless to
emphasis that limitation is a mixed question of fact and law.”
Thus, the observations in the above judgment cited supra relied
by the plaintiff substantiate the contention of the plaintiff that
question of limitation in the present matter is a mixed question of
law and fact and it is a triable issue.
-- 4 of 6 --
5 NM No.31021 IN SUIT No.310019
7) The facts of the present case and facts of the case of
Liverpool & London S.P. & I. Asson vs. M.V. Sea Success I &
Anrand cited supra relied by plaintiff in the opinion of this court
are different. Therefore, from the matter on record there appear
no substance in the contention of the defendant No.1 that the
averments in the plaint exfacie disclose that the suit is barred by
law of limitation.
8) Considering the matter on record and reading of the
plaint as a whole it cannot be said that pleading of the plaintiff
exfacie disclose that suit is barred by law of limitation. Therefore,
the prayer of plaintiff for rejection of plaint on the ground that
suit is barred by law of limitation is devoid of merit and liable to
be dismissed. Hence, court proceeds to pass following order:
ORDER
1) Notice of Motion No. 310 of 2021 is dismissed.
2) Notice of Motion No. 310 of 2021 is disposed off accordingly.
Date : 10/10/2022. (Shri. K.P. Kshirsagar)
Judge
City Civil Court,
Gr. Mumbai.
Dictated on :10/10/2022.
Typed on : 11/10/2022.
Checked on :13/10/2022.
Corrected & signed on : 18/10/2022.
-- 5 of 6 --
6 NM No.31021 IN SUIT No.310019
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
19/10/2022 Mrs. S.A. Shekade.
Name of the Judge (With Court room
no.)
SHRI K.P. Kshirsagar (Court Room
No.08)
Date of Pronouncement of
JUDGMENT/ORDER
10/10/2022.
JUDGMENT/ORDER signed by P.O.
on
18/10/2022.
JUDGMENT/ORDER uploaded on 19/10/2022.
-- 6 of 6 --