Final Order 1

Order Details: Notice of Motion
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MHCC010031242020
IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
NOTICE OF MOTION NO. 1111 OF 2020
IN
SUIT NO. 1212 OF 2012.
Kanti Harjivandas Amin. ]..Plaintiff.
V/s.
Ankit Enterprises and others. ]..Defendants.
Advocate Ms. Priya Rombade for the plaintiff.
Advocate Mr. Shubham for the defendant No.1.
Advocate Ms. Kandekar for defendant Nos.3 and 4.
Advocate Mrs. Chandramore for defendant No.5/BMC.
CORAM : HIS HONOUR JUDGE
MR. VAIBHAV V. PATIL
(C.R.NO.09)
DATE : 18th JULY 2023
ORAL ORDER
The plaintiff has taken out present Notice of Motion for
seeking reliefs of framing issues in the Suit under Order XIV, Rule of the
C.P.C. and to treat the affidavit of evidence of PW-1, plaintiff’s witness
affirmed on 09.10.2014 filed alongwith compilation of documents and
Notice of Motion No.1458 of 2012 be tagged alongwith the final
hearing of the suit and also seeking relief of ad-interim order of
injunction dated 09.05.2012 in Notice of Motion No.1458 of 2012
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extended from time to time till date be extended as interim order
pending hearing and final disposal of the suit.
2. It is contention of the plaintiff that suit is filed for
declaration and possession against the defendants. The plaintiff is an
old tenant of a premises in old building cessed and an eligible occupant
under statutory scheme of redevelopment under Development Control
Regulations, entitled to a residential premises in the new constructed
building on redevelopment in place of old cessed building under the
statutory scheme under Development Control Regulations 33(7)
constructed by defendant No.1 as builder engaged by defendant No.2 as
Chief Promoter of a proposed co-operative housing society.
3. It is further contention of the plaintiff that while hearing
the Notice of Motion No.1458 of 2012, on the insistence of defendant
Nos.1 and 2, this Court framed a preliminary issue of jurisdiction on
02.04.2014. The affidavit of evidence was filed by the plaintiff’s witness
affirmed on 09.10.2014 and oral evidence on 21.04.2016 in support of
the said preliminary issue along with compilation of documents led on
21.04.2016. The witness PW-1 was cross-examined by the defendants’
advocates.
4. It is further contended that the Hon’ble Supreme Court by
its judgment dated 04.10.2019 in S.L.P. No.31982 of 2013 (Nusli Wadia
Vs. Ivory Properties), interpreting section 9A of C.P.C. in State of
Maharashtra held that evidence, on issue of jurisdiction under section
9A of C.P.C. is not permitted. It is submitted that now the amendment
to section 9A C.P.C. is withdrawn in the State of Maharashtra by
ordinance dated 27.06.2018 and as such, trial of preliminary point of
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jurisdiction has been rendered redundant in the present suit at this
stage. Substantial evidence has been recorded. The plaintiff again
required to file affidavit of evidence in the suit. No prejudice would be
caused to the plaintiff, if the suit is taken up for trial and the Notice of
Motion for interim relief is tagged alongwith the suit. Therefore, the
plaintiff prayed for allowing Notice of Motion in terms of prayer clause
(a) to (d).
5. The defendant No.1 has strongly opposed Notice of Motion
by filing his affidavit in reply. It is submitted that the plaintiff is
essentially seeking to procure an interim order in the Notice of Motion
No.1458 of 2012 without even having any final hearing for the same.
The pleading in the Notice of Motion No.1458 of 2012 are already
completed and the same is ripe for hearing. It is a settled law that an
Interlocutory Application should be disposed of at the earliest point of
time. Therefore, this Hon’ble Court may frame issues in the present suit
once it decides the Notice of Motion No.1458 of 2012 finally. It is
pertinent to note that an ad-interim order in the present matter has
been operating since almost 9 years without even finally hearing the
Notice of Motion No.1458 of 2012. On the issue of leading evidence, it
is submitted that This Hon’ble Court to decide as it is the plaintiff’s
prerogative to treat the Affidavit of evidence for leading evidence in
Section 9-A application as the Affidavit of Evidence in the suit. In the
circumstances, it is submitted that Notice of Motion be dismissed with
costs.
6. Perused Notice of Motion and affidavit in reply filed by
defendant No.1 and also perused Affidavit-in-rejoinder of the plaintiff.
Heard learned advocates for both the parties at length.
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7. On perusal on record, it appears that the plaintiff had taken
out Notice of Motion No.1458 of 2012 and interim relief was granted to
the plaintiff which came to be extended from time to time. Further, it
appears that on 02.04.2014, the Preliminary Issue was framed by this
Court regarding the jurisdiction. Thereafter, the plaintiff led evidence
on preliminary issue and he was cross-examined by the defendants.
Now the plaintiff tendered present Notice of Motion seeking prayers
that Notice of Motion No.1458 of 2012 be tagged along with the final
hearing of the suit and issue be framed under Order XIV Rule-2 of the
C.P.C. and also prayed for ad-interim order of injunction dated
09.05.2012 in Notice of Motion No.1458 of 2012 be extended till final
disposal of the suit.
8. It is submitted on behalf of the plaintiff that in view of
Authority of the Hon’ble Supreme Court in the case of Nusli Neville
Wadia Vs. Ivory Properties and Others reported in the 2020(1)ABR258,
no evidence can be led under section 9-A of the C.P.C. Therefore, now
preliminary issue cannot be decided. Hence, evidence of PW-1,
plaintiff’s witness, affirmed on 09.10.2014 under section 9-A of C.P.C.
be treated as his Affidavit of Evidence in the suit.
9. As against, it is submitted on behalf of defendant No.1 that
the plaintiff’s prayer clause (c) and (d) are
mala-fide, as the plaintiff
seeks relief of extension of ad-interim order of injunction dated
09.05.2012 in Notice of Motion No.1458 of 2012 till final disposal of
the suit which was not at all extended since last three years and it is
already discontinued. Further, the plaintiff seeks relief that Notice of
Motion be tagged alongwith the final hearing of the suit without
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hearing on Notice of Motion and he is seeking extension of ad-interim
order which cannot permitted.
10. Now, on perusal of record, it shows that Notice of Motion
No.1458 of 2012 is pending for hearing since last more than 10 years. It
appears that the plaintiff was granted ad-interim relief which was
extended from time to time without hearing on Notice of Motion
No.1458 of 2012. Further, ad-interim order of injunction dated
09.05.2012 was discontinued before three years and as on today, there
is no interim order as such in existence. Therefore, prayer of plaintiff
of extension of ad-interim order of injunction dated 09.05.2012 in
Notice of Motion No.1458 of 2012 til final disposal of the suit has no
force and cannot be allowed. Furthermore, Notice of Motion No.1458
of 2012 is pending for hearing since many years. It is necessary to
dispose the said Notice of Motion No.1458 of 2012 first before
proceeding with the suit. Hence, prayer of plaintiff to tag Notice of
Motion No.1458 of 2012 alongwith final hearing of the suit also cannot
be allowed.
11. So far as prayer of plaintiff to treat the affidavit of evidence
of PW-1, plaintiff’s witness affirmed on 09.10.2014 as his affidavit of
evidence in the suit is concerned, at this stage the prayer is premature
as preliminary issue of jurisdiction is under consideration. Hence, said
prayer of the plaintiff cannot be considered at this stage.
12. It is submitted by the learned advocate for the plaintiff that
in view of Authority of the Hon’ble Supreme Court in the case of Nusli
Neville Wadia Vs. Ivory Properties and Others reported in the
2020(1)ABR258 (cited supra), it is now not necessary to decide
preliminary issue Therefore, Issue under Order XIV Rule 2 of C.P.C. be
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framed. It is also submitted that in view of Maharashtra Second
Amendment Act, 2018, the preliminary issue needs not be decided.
13. It has been held by the Hon’ble Apex Court in the above
authority that;
“Section 2 of the Maharashtra Second Amendment
Act, 2018 which provides that where consideration of
preliminary issue framed under Section 9A was pending
on the date of commencement of the Code of Civil
Procedure, the said issue shall be decided and disposed
of by the Court under section 9A as if the provision
under Section 9A had not been deleted, did not change
the legal scenario as to what can be decided as a
preliminary issue under section 9A, Code of Civil
Procedure, as applicable in Maharashtra.
14. Thus, it is crystal clear that where consideration of
preliminary issue framed under Section 9A of the C.P.C. was pending on
the date of commencement of the Code of Civil Procedure, the said
issue shall be decided and disposed of by the Court under section 9A
C.P.C. as if Section 9A of C.P.C. had not been deleted. In the present
suit, preliminary issue has been framed in the year 2014 and
consideration of the said preliminary issue was pending on the date of
commencement of the Code of Civil Procedure and Maharashtra
Second Amendment Act, 2018. Therefore, the said preliminary issue is
required to be decided and disposed of, as provided under the provision
of Maharashtra Second Amendment Act, 2018 as well as in the
authority of the Hon’ble Supreme Court. Therefore, submissions made
on behalf of the plaintiff in this regard cannot be accepted.
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15. In the light of above observations,, I hold that the Notice of
Motion is devoid of merits and is liable to be dismissed with costs. In
the result, I proceed to pass the following order:-
ORDER
1. Notice of Motion No. 1111 of 2020 is hereby
dismissed with costs.
2. Notice of Motion No. 1111 of 2020 stands
disposed of accordingly.
(VAIBHAV V. PATIL)
Judge,
City Civil Court,
Date: 18.07.2023 Gr. Bombay.
Dictated on : 18.07.2023
Transcribed on : 18.07.2023
Signed on : 25.07.2023
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
26/07/2023 At 11.30 a.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
18.07.2023
Judgment/Order signed by P.O. on 25.07.2023
Judgment/Order uploaded on 26.07.2023
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