Final Order 2

Order Details: Notice of Motion
Pdf Text: 1 NM 7192020 IN SUIT NO.9822020
MHCC010019322020
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO. 719 OF 2020
IN
SUIT NO.982 OF 2020
L. Ramanathan ] ...Plaintiff.
Versus
M/s. Heet Builders Pvt. Ltd. & Others ]…Defendants.
Appearance:
Ld. Advocate Sandhya Tirmare for Plaintiff.
Ld. Advocate Mohite @ Adv. U.P. Singh for Defendants No.1 to 5.
Ld. Advocate Chandramore for Defendant/MCGM.
CORAM : K.P. KSHIRSAGAR
JUDGE, (C.R.NO.08)
DATE : 17/12/2022
ORAL ORDER
1) Defendants No. 1 to 5 have taken out present notice of motion
for rejection of plaint under Order 7 Rule 11 of Code of Civil
Procedure or in alternative for return of plaint as per Order 7
Rule 10 of Code of Civil Procedure.
2) Perused the notice of motion, affidavit in support of notice of
motion, affidavit in reply of the plaintiff and record. Heard
arguments of Ld. Advocate for defendants No.1 to 5 and Ld.
Advocate for plaintiff.
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3) Ld. Advocate for defendants No.1 to 5 argued that the suit is
barred by law of limitation. Plaint does not disclose cause of
action. Plaintiff instituted suit without obtaining leave u/s.80
(2) of Code of Civil Procedure. Reliefs claimed in the plaint are
under valued. Moreover, plaintiff has intentionally omitted to
claim consequential reliefs and therefore, suit is barred by
proviso to section 34 of the Specific Relief Act 1934. Moreover,
reliefs claimed are in fact beyond pecuniary jurisdiction of this
court. Therefore, Ld. Advocate for defendants No.1 to 5 prayed
that plaint be rejected under Order 7 Rule 11 of the Code of
Civil Procedure or plaint be returned to the plaintiff under
Order 7 Rule 10 of Code of Civil Procedure for filing same
before the appropriate forum. Court has gone through the
written submissions tendered on behalf of defendants No.1 to 5.
Ld. Advocate for defendants No.1 to 5 relied on the following
judgments:
1) Dahiben vs. Arvindbhai Kalyanji Bhanusali (Gajra), (2020)7
SCC 366;
2) Kashinath Oke & Ors vs Tukaram Nilkanth Oke & Ors, 1955
SCC Online MP 25:AIR 1956 Nag 195;
3) Akola Janata Commercial Coop. Bank Ltd. Vs Prema Satish
Purohit & Ors, 2017 SCC Online Bom 174;
4) Ganesh Tavanappa Barde vs Tatya Bharmappa Mirji & Ors,
1926 SCC Online Bom 23;
5) Gaurav s/o Balmukund & Ors vs Tukaram Pandurang
Dhagekar, 2018 (4) Mh.L.J;
6) Ram Prakash Gupta vs Rajiv Kumar Gupta & Ors, (2007) 10
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3 NM 7192020 IN SUIT NO.9822020
SCC 59;
7) Sunder Parmanand Lalvani vs Shreepad Moreshwar Velkar &
Official Assignee, HC, Bombay, 1987 SCC Online Bom 471;
8) Muni Lal vs Oriental Fire & General Insurance Co. Ltd.,
(1996) 1 SCC 90;
9) Sejal Glass Limited vs Navilan Merchants Private Limited,
(2018) 11 SCC 780.
Court has gone through the observations therein.
4) On the other hand, Ld. Advocate for plaintiff argued that the
plaint exfacie discloses the cause of action for instituting the
present suit. The cause of action in the present suit is continued
one as the statutory rights of the plaintiff are infringed. The
primary grievance of the plaintiff is that he is entitled for the
premises of 740 sq.ft.area and he has been given the premises of
622 sq.ft.area only and therefore, he is entitled to be
compensated. Plaint exfacie reveals that plaintiff has stated that
the cause of action to institute suit arose in February 2018 and
on 6/7/19 and therefore, suit is not barred by limitation.
Plaintiff has already obtained the leave of court under section
80 (2) of the Code of Civil Procedure. Declaratory relief can be
claimed without claiming consequential reliefs. The relief of
declaration claimed in the present suit comes within purview of
section 9 of the Code of Civil Procedure and section 34 of the
Specific Relief Act is not applicable. Plaint exfacie reveals that
plaintiff has properly valued the relief of declarations.
Therefore, in the present matter question of bar of suit by law of
limitation or any other law, valuation and the question of cause
of action are triable issues and they will have to be decided on
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merit. Ld. Advocate for plaintiff argued that under Order 7 Rule
11 entire plaint is required to be rejected. Plaint cannot be
rejected in part. Suit is within the pecuniary jurisdiction of this
court. Therefore, Ld. Advocate for plaintiff submitted that notice
of motion be dismissed.
5) From perusal of the plaint it appears that plaintiff has filed the
present suit for the relief of declarations including declaration
that defendants No.1 and 2 are bound to provide the
cooperative society free maintenance for ten years from the date
of issuance of occupation certificate and defendants No.1 and 2
have no right to disconnect water supply and other amenities of
plaintiff and other tenants etc.and for mandatory injunction.
From the perusal of the plaint it appears that plaintiff has
averred that defendants No.1 and 2 have issued letter
dtd.6/7/19 threatening to disconnect the water supply of the
plaintiff and others. Plaintiff averred that defendant No.1 and 2
failed to pay maintenance charges as per their obligations and
they failed to honour their obligations as per agreement Exh.A.
The perusal of plaint reveals that plaintiff has categorically
averred that the cause of action for the institution suit arose in
February 2018 and thereafter on 6/7/19 and the suit is not
barred by law of limitation.
6) It is settled law that for deciding the application under Order 7
Rule 11 of the Code of Civil Procedure only averments in the
plaint are germen and the defence of the defendants is
immaterial. From the reading of the plaint as a whole exfacie it
appears that plaintiff has pleaded the date of accrual of cause of
action for filing the present suit and averred that present suit is
not barred by limitation. Plaintiff has specifically averred the
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5 NM 7192020 IN SUIT NO.9822020
date of accrual of the cause of action. The cause of action is
bundle of rights. Plaintiff has categorically averred that
defendants No.1 and 2 have failed to discharge there statutory
obligations and denied plaintiff and other tenants their
legitimate dues. Therefore, from the reading of the plaint as a
whole exfacie it reveals that plaint discloses cause of action and
the date of accrual of the cause of action and
statement/averments relating to limitation. Moreover, plaint
exfacie reveals that plaintiff has prayed for the reliefs of
declaration and mandatory injunction only. Therefore, exfacie it
does not appear that plaintiff has undervalued the reliefs.
7) Moreover, in the case of Sejal Glass Limited vs Navilan
Merchants Private Limited, cited supra relied by the defendants
No.1 to 5 the Hon'ble Apex Court observed that, “What is
important to remember is that the provision refers to the
“plaint” which necessarily means the plaint as a whole. It is only
where the plaint as a whole does not disclose a cause of action
that Order 7 Rule 11 springs into being and interdicts a suit
from proceedings”. In view of the above observations it is clear
that the plaint cannot be rejected in part. Moreover, bar
provided by proviso to section 34 of the Specific Relief Act is not
bar for institution of the suit and it provides that court shall not
grant the declaration relief when plaintiff omits to seek any
further or consequential relief to its relief of declaration. From
the statement of the plaint exfacie it appears that plaintiff has
filed present suit u/s. 9 and 26 read with Order 1 Rule 1 of the
Code of Civil Procedure and suit is not filed u/s.34 of the
Specific Relief Act. Moreover, from the record it appears that
the plaintiff has already filed an application for grant of leave
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under Order 2 Rule 2 of the Code of Civil Procedure. Moreover,
from the record it appears that on 6/2/2020 court has granted
leave u/s.80(2) of the Code of Civil Procedure to the plaint.
Therefore, considering the matter on record the meaningful
reading of the plaint as a whole exfacie does not reveal that
plaint does not disclose the cause of action or it is barred by law
of limitation or section 34 of Specific Relief Act 1963 or it is
undervalued or the reliefs claimed in the present suit exceeds
the pecuniary jurisdiction of this court.
8) From the meaningful reading of the plaint court does not find
that exfacie present suit is vexatious without any merit or plaint
does not disclose the cause of action. Exfacie plaint does not
appear to be barred by any law or it is undervalued. The
question of limitation in the present suit exfacie does not appear
to be pure question of law and exfacie the plaint contains the
necessary averments relating to limitation and cause of action.
Exfacie it does not appear that suit exceeds the pecuniary
jurisdiction of this court. Therefore, in the humble opinion of
this court the facts of the present matter and facts of the
judgment in the cases of 1) Dahiben vs. Arvindbhai Kalyanji
Bhanusali (Gajra), (2020)7 SCC 366; 2) Kashinath Oke & Ors vs
Tukaram Nilkanth Oke & Ors, 1955 SCC Online MP 25:AIR
1956 Nag 195; 3) Akola Janata Commercial Coop. Bank Ltd. Vs
Prema Satish Purohit & Ors, 2017 SCC Online Bom 174; 4)
Ganesh Tavanappa Barde vs Tatya Bharmappa Mirji & Ors,
1926 SCC Online Bom 23; 5) Gaurav s/o Balmukund & Ors vs
Tukaram Pandurang Dhagekar, 2018 (4) Mh.L.J; 6) Ram
Prakash Gupta vs Rajiv Kumar Gupta & Ors, (2007) 10 SCC 59;
7) Sunder Parmanand Lalvani vs Shreepad Moreshwar Velkar &
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7 NM 7192020 IN SUIT NO.9822020
Official Assignee, HC, Bombay, 1987 SCC Online Bom 471; 8)
Muni Lal vs Oriental Fire & General Insurance Co. Ltd., (1996)
1 SCC 90 cited supra are different than the facts of the present
case. Therefore, in the humble opinion of this court the
observations in the judgments cited supra not helpful to the
defendants No.1 to 5.
9) Considering the matter on record and above discussion, the
present notice of motion is liable to be dismissed. Hence, court
proceeds to pass following order:
ORDER
1) Notice of Motion No. 719 of 2020 is dismissed.
2) Notice of Motion No. 719 of 2020 is disposed off accordingly.
Date :17/12/2022.
(Shri. K.P. Kshirsagar)
Judge
City Civil Court,
Gr. Mumbai.
Dictated on : 17/12/2022.
Typed on:17/12/2022.
Draft received on:19/12/2022.
Checked on :22/12/2022.
Signed on :23/12/2022.
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
23/12/2022 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
17/12/2022.
JUDGMENT/ORDER signed by P.O.
on
23/12/2022
JUDGMENT/ORDER uploaded on 23/12/2022
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