Final Order 1

Order Details: Notice of Motion
Pdf Text: MHCC010021702020
Presented on : 20-02-2020
Registered on : 20-02-2020
Decided on : 17-06-2023
Duration : 3 years, 3 months, 26 days
IN THE COURT OF
COURT 17 ADDL SESSIONS JUDGE AT Mumbai,Mumbai
Presided Over by Shri. S. N. Patil
NOTICE OF MOTION/100792/2020
IN
SHORT CAUSE SUIT NO.1155 OF 2016
Bholanath Dubey,
Son of Lamandhar Dubey,
Age-54 years, Occ: NIL,
Having his correspondence address as
C/o. Adv. Anjali R. Awasthi,
Adjacent to PWD Office, Opp. Sewree Fast Track Court,
Zakaria Bunder Road, Sewri, Mumbai-15 ..Plaintiff
VERSUS
1. Mumbai Metropolitan Region Development Authority
Through its Metropolitan Commissioner,
MMRDA, Bandra(E),
Mumbai-400 051.
2. The Chief (R & R)
Mumbai Urban Transport Project
MMRDA building, Bandra(E),
Mumbai-400 051.
3. Field Level Grievance Redressal Committee,
MMRDA building, Bandra(E), Mumbai-400 051.
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4. Senior Level Grievance Redressal Committee,
MMRDA building, Bandra(E), Mumbai-400 051.
5. Santosh Kumar Dashrath Singh,
Age-Adult, not known,
Residing at Room No.201,
Hiranandani Building No.6A,
Mankhurd, Mumbai.
6. Society for the Promotion of Area Resource
Center(SPARC),
Non Governmental Origination,
2nd Floor, Khetwadi Municipal School Building,
Khetwadi, 1st Lane, Girgaon, Mumbai-400 004. ..Defendants
_____________________________________________________________
Ld. Advocate Nilesh Archarya a/w adv. Ms. Supriya Ghadge for
plaintiff
Ld.Adv. Ms.Subhedar for MMRDA
Ld. advocate Ganesh Singh for defendant No.5
Ld. advocate Kshirsagar for defendant No.6
_____________________________________________________________
CORAM: HIS HONOUR JUDGE SHRI S.N.PATIL
DATE: 17/06/2023
ORAL ORDER
1. This notice of motion is taken out by defendant No.5 for
rejection of the plaint under order VII Rule 11(d) of the Civil
Procedure Code. (hereinafter referred to as 'C.P.C.) as suit is barred
by law of limitation. He further submitted that there is no cause of
action and plaintiff has undervalued the suit. Defendant No.5 further
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submitted that plaintiff has filed the suit on 30/11/2015 for
declaration that the documents namely affidavit dated 06/08/2022
and agreement of transfer dated 06/08/2002 created no right of
ownership in respect of defendant No.5. He further submitted that
plaintiff also prayed for mandatory order directing defendants to pay
compensation/damages of Rs.10,000/- p.m. and also for mesne
profit.
2. The present defendant No.5 is seeking relief under order
VII Rule 11 of C.P.C. for rejection of the plaint as suit discloses no
cause of action and cause of action is also barred by law of limitation.
Plaintiff has not valued the suit properly. Hence, prayed to allow the
notice of motion and prayed to reject the plaint.
3. The plaintiff by filing reply to the notice of motion
submitted that the question of limitation is the mixed question of
facts and law as such cannot be decided without leading evidence
before framing of issues. He further submitted that defendant No.5
has relied upon his defence to claim ouster of the jurisdiction of this
Court, which is not maintainable under order VII rule 11 of C.P.C.
Only pleadings in the plaint are germane. Plaintiff's suit is well
within limitation and there is a cause of action and therefore
plaintiff's suit is maintainable. He further submitted that defendant
No.5 raised the question of under valuation of the suit claim and the
payment of deficit court fees. However, this will not affect the
jurisdiction of the suit value. Suit premises is allotted by MMRDA at
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free of costs and therefore question of market value does not arise.
The plaintiff properly valued the suit claim and paid the court fees
accordingly. He further submitted that if any deficit court fees is
found to the satisfaction of the Court, this cannot be a ground to
reject the plaint. If, the court ordered to pay the Court fess and if
plaintiff has not paid the court fees, then the question of rejection of
the plaint arise. In this matter, plaintiff has valued the suit properly
and paid the sufficient court fees. Therefore, notice of motion is not
maintainable and prayed for rejection of the notice of motion.
4. Heard Ld. Advocate of defendant Nos.5. Gone through
the written arguments filed by defendant Nos.5 & 6. Heard Ld.
Advocate for plaintiff at length of time.
5. Plaintiff has filed this suit for declaration that the
document dated 06/08/2002 and the agreement dated 06/08/2002
are fabricated and false documents and do not create or assign any
title, ownership in favour of defendant No.5.
6. Ld. advocate for defendant No.5 argued that plaintiff has
filed this suit for declaration declaring that the affidavit and
agreement dated 06/08/2002 are illegal and void, bad-in-law and
seeking declaration for setting aside the same. But, the plaintiff has
not filed the suit within three years from the date of agreement.
7. He further argued that the plaintiff has filed complaint
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before the police. The plaintiff also forwarded the complaints to
various authorities and lastly, he made complaint to the
Commissioner of police on 26/07/2006 alleging the forgery of
making false documents. All these documents clearly indicate that
plaintiff had knowledge regarding the execution of agreement for
sale and the affidavit, therefore, the plaintiff pleaded falsely in the
plaint about the cause of action. He relied upon the juridical
pronouncement in the case of Marine Container Services(I) Pvt. Ltd
V/s Rajesh Dhiralal Vora, 2001(4) Mh.L.J. and submitted that if
document is produced, is admitted and found to be insufficiently
stamped, court can impound the document. The Hon'ble Lordship
held that,”
that at the interim stage as the document was on stamp
paper, it would not be brushed aside on the ground that it was
insufficiently stamped the court could not decline interim relief or
Court cannot at the stage of considering the application for interim
relief be stopped in its track unless it first considers the question
whether the document is sufficiently stamped or not. If the
document is found to be insufficiently stamped, when the document
is produced for being admitted in evidence, the Court can impound
the document and recover the required stamp duty.”
8. But, on perusal of record and proceedings, it is not
brought on record that the Court has given direction to the plaintiff
to deposit the deficit court fees. As per order VII Rule 11(c) of CPC
which speaks where the relief claimed is properly valued, but the
plaint is written upon paper insufficiently stamped, and the plaintiff,
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on being required by the Court to supply the requisite stamp-paper
within a time to be fixed by the Court, fails to do so. But, in this
matter, no such order is passed by the Court. Hence, the ratio laid
down in the cited case is not applicable to the present case.
9. Defendant No.5 further relied upon the case Krishna V/s
Suresh, 2008(5) Mh.L.J. 117, wherein it is held that, “
the
instruments tendered in evidence, if they are found to be
insufficiently stamped, section 34 of the Bombay Stamp Act would
come into play and in such cases the duty with which such
instruments are chargeable or in case of the instruments insufficiently
stamped the amount required to make up such duty and the penalty,
as provided for under section 34(a)(ii), is paid such instruments
cannot be admitted in evidence.”
10. But the question of admissibility of disputed documents,
being a matter of procedure, where the document is forged is to be
decided at the time of adducing the evidence and after making
evidence of both the parties.
11. Ld. Counsel appearing for plaintiff also submitted that at
the time of deciding the application u/o. VII Rule 11 of C.P.C., the
avernments in the plaint are to be taken into consideration and relied
upon the case of Saleem Bhai and others V/s State of Maharashtra
and others, 2003(1) SCC 557 wherein Hon'ble Apex Court held that
that relevant facts which need to be looked into for deciding an
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application thereunder are the avernments in the plaint and not the
plea taken in the written statement. The trial court can exercise the
power under order VII rule 11 at any stage of the suit before
registration of the plaint and after issuing summons to the defendant
or after the conclusion of the trial. For the purpose of deciding the
application u/o. VII Rule 11 of C.P.C. avernments in the plaint should
be germane. The plea taken by the defendant in the written
statement would be irrelevant at this stage. Therefore, a direction to
file the written statement without deciding the application under
order VII Rule 11 of C.P.C. cannot but be procedural irregularity
touching the exercise of jurisdiction by the trial Court.
12. Plaintiff further relied upon the case of Smt. Krishna
Bhutiya V/s The Court of District and Sessions Judge, Bundi & ors.
2013 SCC Online 3518 and drew my attention to the said judgment.
In this matter, the Hon'ble High Court rejected the application under
section VII rule 11 of C.P.C filed by defendant No.1 on the ground
being barred by limitation. The Hon'ble Apex Court observed that it
cannot be gainsaid that the issue of limitation would be a mixed
question of law and fact, which could be decided at the stage of
application under order VII Rule 11 of C.P.C. It further appears that
the trial Court has also not passed any order with regard of incorrect
valuation of suit or for payment of requisite deficit fee. Hence, none
of these grounds are made out under order VII rule 11 of C.P.C. The
trial court has rightly rejected the application.
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13. Plaintiff also relied upon the case of Shakti Bhog Food
Industries Ltd. V/s Central Bank of India and another 2020 SCC
Online 482 and submitted that Art.113 of the limitation Act came
into picture which provides three years period of limitation for suits
which no limitation period is provided, from the date when right to
sue accrues and submitted that cause of action for filing the suit first
arose on 27/09/2013 for first time and provided forged and
fabricated ground for sale dated 06/08/2002. Thereafter, on
03/05/2014, the police complaint came to be registered against
defendant No.5 and officers of MHADA and therefore cause of action
arose and continues till the year 2014. Therefore, the plaintiff's suit is
within limitation. The plaintiff has stated in para.10 about the cause
of action. He explained details about the cause of action and
limitation for filing the suit. Therefore, the issue of limitation is
mixed question of law and facts. It cannot be decided at this stage.
It also appears that Court has not passed any order with regard to the
incorrect valuation of the suit and for payment of deficit court fee
against the plaintiff. Therefore, none of this ground, under section
VII Rule 11 of C.P.C. are made out. Hence, the arguments advanced
by defendant Nos.5 are not considered. The citations submitted by
defendant No.5 are not applicable to the present set of facts which
are not identical. On the contrary, the argument advanced by
plaintiff's advocate and citations submitted are applicable to the
plaintiff's case. Hence, notice of motion under order VII Rule 11 of
C.P.C. is liable to be rejected. Hence, I proceed to pass the following
order:-
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ORDER
Notice of Motion No.792 of 2020 is rejected and
disposed of accordingly.
( S.N.PATIL )
17/06/2023 Judge
City Civil Court, Gr. Bombay.
Dictated on : 17.06.2023.
Transcribed on : 23.06.2023
Signed on : 30.06.2023
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”.
30/06/23 at 04.34 pm.
Mrs.Tanushree C.Kamble
Name of the Judge HHJ SHRI S.N.PATIL
Date of Pronouncement of
judgment/order
17.06.2023
Judgment and order signed by P.O. 30.06.2023
Judgment/order uploaded on 30.06.2023
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