Final Order 1

Order Details: Notice of Motion
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MHCC010017572019
IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
NOTICE OF MOTION NO. 675 OF 2019
IN
SUIT NO. 3147 OF 2018
Sanjay Sharma ]..Applicant
IN THE MATTER BETWEEN
Devang Dinesh Parmar ]..Plaintiff.
V/s.
1. Sanjay Sharma and others ]..Defendants
Plaintiff in person.
Advocate Mr. Sanket Mungle alongwith Advocate Ms. Uma Sharma for
defendant Nos.1 and 2.
Advocate Mrs. Chandramore for defendant Nos.3 and 4/BMC.
Advocate Ms. Mangal Kadam for defendant Nos.6 and 7/MHADA.
CORAM : HIS HONOUR JUDGE
MR. VAIBHAV V. PATIL
(C.R.NO.09)
DATE : 7th OCTOBER 2023
ORAL ORDER
The defendant Nos.1 and 2 have taken out present Notice
of Motion for rejection of plaint under Order-VII Rule 11 of the Code of
Civil Procedure, 1908.
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2 It is contention of defendants that the plaintiff has filed
present suit for declaration that Decree passed by this Court in L.C. Suit
No.4666 of 2005 is null and void and or various other reliefs more
particularly set out in prayer clauses of plaint filed in the above suit.
3. The defendant Nos.1 and 2 have filed their written
statement in the suit. It is contended that the plaintiff has no l
ocus-
standi to challenge the decree passed by this Court in L.C. Suit No.4666
of 2005, as he was neither party to the suit nor tenant of any of the
premises situated in the suit building. The plaintiff has no cause of
action to institute the suit and the plaintiff’s suit is barred by law of
limitation.
4. It is further contended that L.C. Suit No.4666 of 2005
decree whereof is challenged by the plaintiff was instituted by the
defendants against Municipal Corporation of Greater Mumbai,
defendant No.3 (MCGM) challenging their notice issued under section
351 of Mumbai Municipal Corporation Act issued in respect of
defendant No.2 (wife of defendant No.1) and mother of defendant
No.1’s flat Nos.1 and 2 situated on 6th floor, 272, Lucky House i.e. suit
building at Shahid Bhagat Singh Road, Mumbai-400 001. The
defendant No.5 was joined as party defendant in pursuance to the order
passed by this Court on their Chamber summons. This Court decreed
the above mentioned suit of defendant No.1’s wife (Defendant No.2)
and his mother in their favour. The plaintiff herein, not being party to
the aforesaid suit No.4666 of 2005, he has no locus to challenge the
decree thereof. The defendant Nos.3 and 5 have challenged the
aforementioned decree by way of First Appeal bearing Nos.171 of 2012
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and 37 of 2012 respectively before the Hon’ble Bombay High Court
which have been admitted and are pending for final hearing and
disposal thereof.
5. It is further contended that the plaintiff herein has not
disclosed in the plaint as to how cause of action has arisen in his favour
to institute the suit. Further, the suit is barred by law of limitation as
decree in L.C. Suit No.4666 of 2005 was passed by this Court on
26.09.2011 whereas the suit challenging the decree is filed on
14.11.2018 i.e. after 7 years and 1½ months. Therefore, plaint is liable
to be rejected under Order VII Rule-11 of C.P.C.
6. The plaintiff has filed reply to the Notice of Motion and
strongly opposed the same. It is submitted that defendant Nos.1 and 2
have encroached the common terrace and obtained the decree by
playing fraud upon the Hon’ble Court by relying upon forged bill-cum-
rent receipts and other documents in collusion and connivance with the
officers of the Municipal Corporation and they are misguiding the
Hon’ble Court till date. The defendants claimed that the plaintiff has no
locus-standi and no cause of action in the suit. However, the plaintiff
has made averments in the plaint that he had been using and enjoying
the said common terrace since his childhood before it was encroached.
He has produced on record relevant documents showing that the
defendants obtained decree on the basis of forged and fabricated
documents.
7. It is further submitted that the plaintiff had come to know
about their forged and fabricated rent receipts when he had made
another application under Right to Information Act, 2005 in the
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Building and Factory Department in the year 2016 and thereafter, he
has filed present suit within three years and hence suit is within
limitation. It is submitted that above decree curtail his right of
enjoyment of the said common terrace, as plaintiff being one of the
tenants/occupants/residents of the said building since his birth. He has
enjoyed the said common terrace during his childhood which has been
illegally, arbitrarily and highhandedly locked by the defendant Nos.1
and 2 and converted the same for their private residence. Thus, even
though, the plaintiff is not a party to the suit No.4666 of 2005, since
the said decree operates and affects the plaintiff prejudicially, he is
entitled to challenge the same. In any event, the said decree is vitiated
by the said fraud which would be proved at the Trial Court of the suit.
Hence, it is prayed that Notice of Motion be dismissed with costs.
8. Perused Notice of Motion and Affidavit in support of Notice
of Motion as well as Affidavit-in-reply filed by the plaintiff. Also perused
plaint. Heard learned advocates for both the parties at length.
9. The following points arise for my determination and I have
recorded my findings to them for the reasons stated below.
Sr.
No.
POINTS FINDINGS
1 Whether the defendant Nos.1 and 2 have
proved that the plaint is liable to be
rejected under Order-VII Rule-11 of the
C.P.C. ?
In the
Negative
2 What order? As per the final order
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R E A S O N S
AS TO POINT NO.1 :
10. Heard learned advocate for both the sides at length. It is
submitted on behalf of defendant Nos.1 and 2 that they have taken out
present Notice of Motion under Order-VII Rule-11 of C.P.c. on three
grounds viz., the plaintiff has no
locus-standi, the plaintiff has no cause
of action and suit is barred by law of limitation. It is argued that the
plaint does now show any cause of action to the suit. Moreover, the
plaintiff has no locus-standi to file the suit has he was not party to the
suit No.4666 of 2005 the decree whereof is under challenge. Moreover,
decree in L.C. Suit No.4666 of 2005 was passed by this Court on
26.09.2011 whereas the present suit has been filed on 14.11.2018 i.e.
after 7 years and 1½ months. The suit ought to have been filed within
3 years from the date of decree. Hence, suit is also barred by law of
limitation and hence, plaint is liable to be rejected under Order-VII
Rule-11 of C.P.C.
11. The learned advocate for the defendant Nos.1 and 2 has
relied upon the authorities in the case of Ram Prakash Gupta and Rajiv
Kumar Gupta and others reported in 2007(6) ALL MR 953 and The
Church of Christ Charitable Trust and Educational Charitable Society,
represented by its Chairman reported in 2012 AIR(SC) 3912. I have
gone through the above authorities and have applied the law laid down
in the authorities to the facts of the present case.
12. Per contra, it is argued on behalf of the plaintiff that since
his right to use and enjoy common terrace prejudicially affects, he has
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right to challenge the decree. Moreover, in the plaint, certain facts were
remained to be pleaded which were very crucial and relevant. Hence,
the plaintiff has taken out Chamber Summons for carrying out
amendment in the plaint and for inserting the relevant facts. Therefore,
there is no force in the contention of the defendant that there is no
necessary pleadings in the plaint regarding cause of action and other
things. Further, the suit has been filed within three years from date of
knowledge. Hence, suit is within limitation. Thus, the Notice of Motion
be rejected.
13. From the rival arguments and from the record of the case,
it can be gathered that the plaintiff has filed present suit for declaration
that the decree passed in Suit No.4666 of 2005 is null and void and for
setting aside the said decree, as it is obtained by playing fraud upon the
Court on the basis of forged and fabricated documents. Here, it is
pertinent to note that the plaintiff has claimed that in the entire
pleadings, there is no cause of action pleaded and there is no also
pleadings how the plaintiff is having
locus-standi. The plaintiff on the
other hand, has taken out Chamber Summons No.1664 of 2019 for
inserting the necessary amendment in the plaint.
14. Considering the facts of the case and submissions advanced
on behalf of both the parties, this Court to the conclusion that it would
be just and proper to decide both the Chamber Summons and Notice of
Motion together and accordingly, after hearing arguments of both the
parties, Notice of Motion as well as Chamber summon both are kept for
orders. Now, Chamber Summons of plaintiff has been allowed and the
plaintiff is permitted to carry out amendment as prayed for. So far as
present Notice of Motion is concerned, the said Notice of Motion has
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been taken out under Order-VII Rule-11 of C.P.C. The defendant has
contended that there is no cause of action pleaded in the plaint to
institute the suit and the plaintiff has no
locus-standi to file the suit.
However, it can be gathered on perusal of the plaint that the plaintiff
has pleaded that he had been using and enjoying common terrace
which is encroached by defendant Nos.1 and 2 and it is locked by them.
As contended by the plaintiff from the averments in the plaint, it can be
gathered that the plaintiff has pleaded that his rights have been
prejudiced and therefore, he is entitled to institute the suit as he is
tenant/occupant of the said building. Therefore, it can not be said that
he has no
locus-standi to institute the suit. Further though specific cause
of action has not been mentioned, the cause of action needs to be
gathered from the entire pleading in the plaint. From the averments
made in the plaint, it can be gathered that there is cause of action arose
when the plaintiff came to know about fraud played by the defendants.
15. According to the plaintiff, the decree is passed in the year
2011 and thereafter, he got knowledge of the decree in the year 2016
and thereafter, he instituted the suit within three years. In case of suit
instituted on the basis of fraud, suit is required to be filed within three
years from the date of knowledge. Therefor,e
prima-facie, it appears
that the suit is filed within limitation. Moreover, issue of limitation is
mixed question of law and facts and it can be decided only after leading
evidence and on this ground, the plaint cannot be rejected. Thus, from
all above reasons, I hold that defendant Nos.1 and 2 have failed to
make out the case for rejection of plaint under Order-VII Rule-11 of
C.P.C. Hence, I answer point No.1 in the negative.
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AS TO POINT NO.2 :
16. As the defendant Nos.1 and 2 failed to make out that suit is
liable to be rejected under Order-VII Rule-11 of the C.P.C., the present
Notice of Motion is liable to be dismissed. Hence, in the result, I
proceed to pass the following order:-
ORDER
Notice of Motion No.675 of 2019 stand rejected and
disposed of accordingly.
(VAIBHAV V. PATIL)
Judge,
City Civil Court,
Date: 07/10/2023 Gr. Bombay.
Dictated on : 07/10/2023
Transcribed on : 11/10/2023
Signed on : 12/10/2023
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
12/10/2023 At 03.00 P.M. MRS. SUPRIYA S.PAWAR
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court Room
Number)
HHJ MR. VAIBHAV V. PATIL
(C.R.NO.09)
Date of pronouncement of Judgment/
Order
07/10/2023
Judgment/Order signed by P.O. on 12/10/2023
Judgment/Order uploaded on 12/10/2023
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