Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM no.1103-2018 L.C.SU no.7115-2001
CNR MHCC01-003551-2018
IN THE CITY CIVIL COURT FOR GREATER BOMBAY
AT BOMBAY
NOTICE OF MOTION NO.1103 OF 2018
IN
L.C. SUIT NO.7115 OF 2001
1. Mrs. Perin Rustomji Masani ]..Plaintiff.
Versus
1. The Bombay Municipal Corporation ]
of Greater Bombay & Ors. ]... Defendants.
Coram : M.S. Deshpande, Judge
(Court Room no. 05)
Date : 17th March, 2018.
Mr. Karuwath, advocate for plaintiff.
Mrs. Chandramore, advocate for defendant no.1
Mr. Prashant Chande, advocate for defendant no.4.
ORDER
1. After closing evidence of plaintiff, the defendant no.4 has
taken out this notice of motion seeking to frame issue relating to bar of
limitation. According to the defendant no.4, the plaintiff is not in
possession of the suit premises since 19601961, and that in earlier suit,
the plaint was returned for want of jurisdiction and the same has been
filed before the Hon'ble High Court after the period of twelve years.
The Learned Advocate for defendant no.4 submits that even if the cause
of action is presumed to be arisen on 17.12.1984, the suit is barred by
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2 NM no.1103-2018 L.C.SU no.7115-2001
limitation. According to him, there is sufficient material in support of
the issue of bar of limitation and the same should be framed.
2. The Learned Advocate for the plaintiff and the defendant
Corporation submit that they will not file written reply to the motion,
and they will only make submissions on the motion. Their statements
are accepted and taken on record.
3. The Learned Advocate for Bombay Municipal Corporation
adopted the submissions made on behalf of the defendant no.4. On the
other hand, the Learned Advocate for the plaintiff submits that the
motion has been taken out only to delay the disposal of the suit.
According to him, as the suit is made time bound, such motion has been
taken out. He further submits that the cause of action arose on
17.12.1984 when the defendant Corporation illegally transferred the
rent receipts in the name of defendant no.3 and accordingly the original
suit was filed in 1985. He further submits that in original suit no.2475
of 1985 the issue of limitation was framed and decided in favour of the
plaintiff.
4. The Learned Advocate for the defendant no.4 relies on the
following authorities:
1. A.I.R. 1930 Lahore 394
Madho Ram vs. Dharm Singh.
2. A.I.R. 1973 Supreme Court Cases 313
Amarchand Inani vs. Union of India.
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5. The sum and substance of the ratio laid down in both the
aforesaid authorities are that presentation of plaint in proper Court
after its return under Order VII Rule 10 of Civil Procedure Code is not
continuation of a suit filed in wrong Court.
6. At this juncture, this Court is not expressing any opinion
about the merits of the rival cases i.e. whether the suit is within the
limitation or is it barred by limitation. However, the issue of limitation
goes to the root of the suit, and it being legal one, it is necessary to
frame the said issue. Therefore, the following order is passed:
ORDER
1. The notice of motion no.1103 of 2018 is made absolute in terms
of prayer clause (a) by framing the following issue:
4(a). Whether the suit is barred by law of limitation?
2. The plaintiff is at liberty to lead evidence if any on the issue of
limitation.
Sd/
(M.S. Deshpande)
Judge,
City Civil Court, Mumbai.
Dated: 17.03.2018
Dictated on : 17/03/2018.
Transcribed on : 17/03/2018
Signed by HHJ on : 23/03/2018
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4 NM no.1103-2018 L.C.SU no.7115-2001
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
UPLOAD DATE AND TIME : 23.03.2018 At 03.00 p.m.
NAME OF STENOGRAPHER : Mrs. V. U. Pawar
Name of the Judge (With Court
Room no.)
HHJ Shri. M. S. Deshpande
C.R. no.05
Date of Pronouncement of
JUDGMENT/ORDER
17.03.2018
JUDGMENT/ORDER signed by
P.O. on
23.03.2018
JUDGMENT/ORDER uploaded
on
23.03.2018
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