Final Order 1

Order Details: Order below exhibit
Pdf Text: Order below Exh.1 1 IN SUIT 523-2019
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
ORDER BELOW EXH.1
IN
SUIT NO.523 OF 2019
Ramesh Babaji Kadam ] ...Plaintiff.
Versus
MHADA & Others ]…Defendants.
Appearance:
Ld. Advocate Archana Gaikwad for Plaintiff.
Ld. Advocate Trivedi for Defendant No.2/SRA.
Ld. Advocate Lata Wadhwani for Defendant No.4.
CORAM : V.G.RAGHUWANSHI
JUDGE, (C.R.NO.08)
DATE : 04/11/2023.
ORAL ORDER
1. This suit for mandatory injunction was presented on 13/02/2019.
Plaintiff prayed for following directions:-
a) Defendant No.1 and 2 to deliver photo pass regarding
hutments mentioned in para No.1 of suit.
b) Defendant No.1 and 2 to issue permission to plaintiff in respect
of suit property.
c) Defendant No.3 and 4 to open the road used by plaintiff to
access plaintiff’s property.
d) To restrain defendants from obstructing peaceful possession of
plaintiff over suit property etc. It was contention of plaintiff that
cause of action for this suit arose when road to suit property was
closed by defendants.
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2. Plaintiff submits that he is permanently residing in suit property
from 17/06/1986. He wrote letters to defendant No.1 and 2 and
other concerned authorities to issue photo pass of his hut. But,
nobody paid attention to his request. Sometime in 1996 premises
of defendant No.7 and 8 were declared as slum. Defendant No.7
and 8 appointed defendant No.3 and 4 as developers of their
properties and defendant No.3 and 4 with assistance of
defendant No.5 and 6 prepared redevelopment plan. They
submitted said plan to defendant No.2 for approval. While
preparing those documents defendant No.3 to 8 intentionally
omitted to show house of plaintiff in the premises of defendant
No.7 and 8 societies. Plaintiff’s house was shown outside
boundaries of the societies. In this way plaintiff was not
considered as eligible for redevelopment scheme and his name is
not included in the members list.
3. Defendant No.7 wrote a letter to defendant No.1 and questioned
about the location of hut of plaintiff. The defendant No.1 by
letter dated 03/04/2003 informed defendant No.7 that name of
plaintiff is not included in the members list by defendant No.7.
So defendant No.1 did not include name of plaintiff in Annexure
- II. Plaintiff alleged that defendant No.7 intentionally omitted
plaintiff from redevelopment scheme. Plaintiff further alleged
that he requested defendant No.2 to consider his hut for
redevelopment scheme. The defendant No.2 intimated plaintiff
by letter dated 01/09/2004 and rejected lawful claim of plaintiff
on flimsy ground. Plaintiff approached authorities and
complained to them about the injustice vide his letter dated
26/06/2006. It was duty to defendant No.3 to 6 to keep open the
way to hut of the plaintiff because except plaintiff’s hut all other
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houses were demolished by defendant No.3 and 4. They did not
include plaintiff in Annexure - II as hut was not included in
redevelopment scheme.
4. Plaintiff further alleged that he wrote a letter. Concern authority
on 10/02/2015 and sought permission to construct his hut. But
the application was not decided by the authorities.
5. Plaintiff further submits that he filed a civil suit bearing
No.1213/13 before city civil court Mumbai against defendant
No.3 to 8. In that suit ad interim relief was refused on technical
grounds. There were many irregularities in the suit and therefore
he withdrew the suit with permission to file a fresh suit.
Eventually he filed this suit.
6. I have heard plaintiff in person. He submitted that his way was
obstructed in 2013. Therefore, he filed suit. Thereafter, he
withdrew suit with liberty to file fresh suit. It was granted subject
to law of limitation. Said order was passed on 20/12/2018. He
submits that cause of action arose on 20/04/2015 and suit is
filed on 12/02/2019.
7. Ld. Counsel for defendant No.1 submitted that house of plaintiff
was not MHADA’s plot. Therefore, MHADA could not grant
permission to plaintiff. Plaintiff did not made a single statement
in his complaint showing plaintiff’s ownership over the plot.
Building was demolished in 2013. Cause of action arose before
2013. Therefore, suit is clearly barred by limitation. Ld. Counsel
for defendant No.2 and 3 drew my attention towards pleadings
and order of this court on notice of motion and order passed by
Hon’ble High Court in appeal from Order No.280 of 2021 with
interim application No.2478/2021 dated 21/10/2021. It was
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observed by Hon’ble High Court in said order, “
1. Record clearly
indicates that, for a cause of action which had arisen on
20/04/2015, the Appellant/plaintiff filed present suit on 13th
February, 2019. Thus, the suit is clearly barred by law of
limitation. The trial court has rightly taken into consideration the
said vital aspect of the matter while dismissing the notice of
motion No.1280 of 2019 filed by the Appellant in the present suit
bearing S.C. Suit No.523 of 2019. 2. Record further indicates
that, for the cause of action arisen on 20th April 2015 the plaintiff
had earlier filed suit No.1213 of 2013, which was allowed to be
withdrawn with liberty to file a fresh suit for same cause of
action, subject to the law of limitation, as mentioned in para
No.13 of the impugned order. The plaintiff has filed present suit
on 13th February 2019 which is clearly barred by law of
limitation.”
8. Ld. Counsel for defendant No.2 drew my attention towards para
No.7 and para No.8 to point out that claim of plaintiff was
rejected by defendants in 2004 itself. Suit should have been filed
before 2008. He submitted that plaintiff contended in para No.6
that he complained to authorities on 26/06/2006 and he is
fighting for his grievance since 2005. Ld. Counsel for defendant
No.2 submits that this shows that suit is clearly barred by
limitation. First suit of the plaintiff was filed in 2013 and it is
withdrawn in 2018. In that suit cause of action was of year 2004
to 2006. Ld. Counsel for SRA/defendant No.2 prayed that suit is
hopelessly barred by limitation and prayed for dismissal as barred
by limitation.
9. Ld. Counsel for plaintiff submitted that an order passed by
Hon’ble High Court pertains to relief to injunction only. It cannot
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affect other reliefs sought by plaintiff. Section 9-A of Code of Civil
Procedure is deleted. Cause of action is continuous and there is
pleading in this respect. Ld. Counsel for plaintiff relied upon Sau
Rajani vs Sau Smita & Anr 2022 LiveLaw (SC) 702 in support of
its contention.
10. I have given thoughtful consideration to submissions of counsels
of plaintiff and defendants. In this case it is clear from pleadings
in para No.7 and 8 that he was informed by defendants in 2004
that his claim has been rejected. Thereafter, again in 2006 his
claim was rejected. Therefore, in any case suit should have been
presented within three years from those dates. Plaintiff filed its
first suit in 2013. That means the cause of action was prior to
2013. Thereafter, he withdrew that suit with liberty to file fresh
suit. Liberty was granted to plaintiff subject to law of limitation.
But, the incidents pleaded by plaintiff clearly show that his claim
was turned down by defendants in 2004 itself. Therefore, the suit
is hopelessly barred by limitation. Same observations were made
by Hon’ble High Court in the appeal filed by plaintiff against
rejection of this notice of motion. Plaintiff tried to harp upon
matter of Sau Rajni (supra), but that matter is based on entirely
different set of facts. Section 71 of Maharashtra Housing &
Development Authorities Act bars jurisdiction to civil court in
respect of any order made or to be made or any action taken or
to be taken by the competent authority in exercise of powers
conferred by or under the said Act. Section 177 of said Act bars
jurisdiction of civil court in respect of any matter which the
authority or tribunal is empowered by or under act to determine.
Principles laid down by Hon’ble Apex Court in matter of Rajni are
not applicable to this case. The pleadings prima facie disclose
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that suit is hopelessly barred by limitation and therefore, I pass
following order:-
ORDER
Suit is dismissed as barred by limitation.
Date : 04/11/2023 (Shri. V.G. RAGHUWANSHI)
Judge
City Civil Court,
Gr. Mumbai.
Dictated on :04/11/2023.
Transcribed on :06/11/2023.
Signed on :07/11/2023.
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
23/11/2023 Mrs. S.A. Shekade.
Name of the Judge (With Court room
no.)
SHRI V.G. Raghuwanshi (Court Room
No.08)
Date of Pronouncement of
JUDGMENT/ORDER
04/11/2023
JUDGMENT/ORDER signed by P.O.
on
07/11/2023
JUDGMENT/ORDER uploaded on 23/11/2023
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