Final Order 1

Order Details: Notice of Motion
Pdf Text: Notice of Motion No. 1238 of 2019 1 Suit No.7072 of 2003
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION No.1238 of 2019.
IN
SUIT NO.7072 of 2003.
(CNR No. MHCC010031802009)
Sanjay Kumar Ashta ... Plaintiff
V/s.
Airport Authority of India & Ors. .. Defendants
CORAM : HIS HONOUR JUDGE
SHRI. GOPAL G. BHANSALI.
(C.R. NO.31)
DATE : 12.04.2019.
APPEEARANCE.
Ms. Meena Ruparel, Advocate for plaintiff.
Ms. Yasmin Sarang, Advocate for Defendant No.1.
Mr. Gandhi alongwith Ms. Soma Maintra, Advocate for Defendant no.5
ORAL ORDER
This is a notice of motion taken out by plaintiff for
valuation of the suit as contended in para 5 of the written statement
and for permission to pay additional Court fees. There is no reply filed
by defendant no.5.
2. The learned advocate Ruparel for plaintiff submits that the
plaintiff is in possession over the suit property since 1999. The Eviction
Officer is not sure and confused in respect of location of the property
and identification of the property. At present the valuation of the
property, it is around 1.35 crores. Therefore, it is beyond the pecuniary
jurisdiction of this Court. It is requested for valuation of the suit as per
present value and permission to pay additional Court fees.
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Notice of Motion No. 1238 of 2019 2 Suit No.7072 of 2003
3. The learned advocate Gandhi for defendant no.5 submits
that as per order of Hon'ble High Court dated 15.10.2003, interim
protection for possession of the plaintiff is granted. It is further
observed by the Hon'ble High Court, the plaintiff should not be
dispossessed without availing due process of law. One eviction
proceeding no.9 of 2005 is filed against the plaintiff before the Airport
Tribunal. The eviction application no.1 of 2010 is pending against the
plaintiff. It is contested by the plaintiff before the appropriate
authority. Upon establishment of independent authority, it is submitted
that present suit is not tenable before this Court. It is requested to
dismiss the suit.
4. On perusal of plaint, the notice issued by the defendant
dated 01.09.2003 is declared as void by the plaintiff. It is further
claimed that plaintiff be declared as lawful and peaceful possessor over
the suit property. It is observed by this Court in order of chamber
summons no.1506 of 2016 dated 18.02.2019 that there is no relief of
declaration of ownership is claimed by the plaintiff. The plaintiff is
claiming the protect possession over suit premises as per agreement to
sale dated 08.12.1991.
5. The plaintiff is dominuslitus i.e. master of the suit. He
has liberty to value the suit for which objection raised by defendants are
not relevant, if required, the Court may recover the remaining court
fees.
6. According to the defendant, upon establishment of
independent tribunal under Airport Authority of India Act, 1994 and
The Public Permission for Eviction of Unauthorized Occupant Act, 1971,
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Notice of Motion No. 1238 of 2019 3 Suit No.7072 of 2003
there is no jurisdiction to this Court. Therefore, it is necessary to have
the hearing on preliminary issue of jurisdiction.
7. As observed above, the plaintiff is claiming ownership over
the suit property as per agreement of sale dated 08.02.1991. It is the
case of the plaintiff that he received the title and possession from the
defendant no 3 and 4, namely Maruti and Anant Kamble respectively.
The plaintiff is enjoying the possession since 1991. However, in para 23
''A to H'' of the plaint, the plaintiff has challenged the legality of eviction
notice issued by the defendants. Therefore, there is no necessity to
value of the suit as per market value of the suit property. Hence, the
present motion is deserves to be rejected. However, the preliminary
issue of jurisdiction is framed, parties to argue on preliminary issues.
Hence, the order. :
ORDER
1. The Notice of Motion No.1238 of 2019 stands
rejected.
2. In view of application vide Exh.11 the following
preliminary issue is framed. Both side to argue upon
said issue.
A) Whether this court vests the jurisdiction to try
the suit in present form?
3. Accordingly, the Notice of Motion No. 1238 of 2019
stands rejected.
(Gopal G.Bhansali )
Judge,
Date:12.04.2019. City Civil Court, Gr.Mumbai.
Dictated on : 12.04.2019.
Transcribed on : 15.04.2019
Signed on :
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Notice of Motion No. 1238 of 2019 4 Suit No.7072 of 2003
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED ORDER.”
06.06.2019 at03.25m. PUSHPA RAMESH WAGH
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge HHJ SHRI G.G.BHANSALI
(Court Room No.31)
Date of pronouncement of Order 12.04.2019
Order signed by P.O. on 12.04.2019
Order uploaded on 06.06.2019
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