Final Order 1

Order Details: Notice of Motion
Pdf Text: IN THE BOMBAY CITY CIVIL COURT FOR GREATER BOMBAY
NOTICE OF MOTION No. 1409 OF 2018
IN
SUIT No.7485 OF 1983
Mrs. Anita Bhojwani & Ors. ..Plaintiff.
Versus.
Mrs. Natasha Prakash Tilokani & Ors. ..Defendants.
Adv. Sania Putta for Plaintiffs.
Adv. Kachare for Defendant Nos.1(b), 2 & 4.
CORAM : Dinesh P. Surana
Court Room No.1
DATED : 06.04.2018.
ORAL ORDER
Present Notice of Motion is taken out by defendant N.1(b), 2 and
4 for deciding Issue Nos.1 and 3 as preliminary issues. Therefore,
present Notice of Motion is filed under Order XIV Rule 2(2) of the Civil
Procedure Code. The issues were framed on 05.02.2018 vide Exh.5.
Issue No.1 and 3 are reproduced herein below.
1. Whether the suit is barred by the law of limitation?
3. Whether the Court has jurisdiction to try and decide the suit and suit
is maintainable?
2. Heard both sides, perused supporting affidavit to Notice of
Motion, reply filed by the plaintiffs and rejoinder filed by the
defendants.
3. It is contended by advocate for defendants that the plaintiffs' suit
is based on oral Agreement of 19691970 which is pleaded in paragraph
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5 of the Plaint and suit is filed in the year 1983. That, the cause of
action for filing the suit arose in the year 1983 and therefore suit is
barred by law of limitation. He further submitted that original plaintiff
Nos. 1 & 2 contended that they are partners of M/s. Highway Ice
Factory. However, no document of registration is filed. He further
submitted that original registration certificate of the firms or Deed of
Partnership is also not filed. He submitted that copy given by advocate
for plaintiffs in the inspection to defendant No.1(b), 2 and 4 was the
extract of registration, from it, it cannot be concluded that partnership
is registered. He further submitted that suit is filed not by partner of
partnership firm but by individual partner i.e. original plaintiff Nos.1 &
2 and after death of partner i.e., original plaintiff partnership dissolved
and therefore present suit is not maintainable. He submitted that all
these issues will go into root of the case and require to be decided firstly
without going into merits of the case.
4. As against this, advocate for plaintiffs opposed the application on
the ground that the Notice of Motion is not maintainable at this stage
and Issue Nos.1 and 3 be decided along with other issues framed at
Exh.5.
5. At the outset, I would like to mention here that there are
consequences of non giving of inspection of documents. The fact is not
disputed by the defendants that it is being contended by the plaintiffs
that firm was registered. Therefore, it is only after the evidence the said
aspect can be adjudicated. So also, only because oral agreement is of
19691970 and suit is filed in 1983, prima facie, it cannot be said that
suit is barred by law of limitation. Both issues are related to the fact as
well as law wherein, other issues are inter linked with Issue No.1 and 3,
therefore, I am of the view, that, all the issues vide Exh.5 are required
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to be adjudicated together by allowing parties to lead evidence on all
issues together as per Order XVIII of the Civil Procedure Code instead of
proceeding under Order XIV Rule 2(2) of the Civil Procedure Code.
6. So also, it is pertinent to note here that examinationinchief of
PW1 is already completed. Exercise of exhibiting the documents by
lengthy arguments and order is complete. The suit is of year 1983.
Therefore, in my opinion, it will be desirable to decide the issue Nos.1 &
3 together with all issues under Order XIV Rule 2(2) of the Civil
Procedure Code. Therefore, I am of the view, application deserves to be
rejected. Order 14 Rule 2(2) of the Civil Procedure Code is the
discretion of the court, which is to be exercised having regard to the
facts and circumstances of the case. However, having regard to the
above facts, I am of the view that, application deserves to be rejected. In
the result, I proceed to pass following order.
ORDER
Notice of Motion stands rejected.
(Dinesh P. Surana)
Judge, City Civil Court,
Date : 06.04.2018. Gr. Bombay.
Dictated on : 06.04.2018
Transcribed on : 07.04.2018
Signed on : 11.04.2018
“CERTIFIED TO BE TRUE & CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
11.04.2018 3.00 p.m. Mr.Vishnu S. Shinde
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (with Court Room No.) HHJ Shri D.P. Surana (C.R.No.01)
Date of pronouncement of Judgment/ order 06.04.2018
Judgment/Order signed by the P.O. on 11.04.2018
Judgment/Order uploaded on 11.04.2018
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