Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM No.1711-2020 in SU No.1212-2010
MHCC010051282020
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
GREATER BOMBAY
NOTICE OF MOTION NO.1711 OF 2020
in
L C SUIT NO. 1212 OF 2010
M/s. D. Abraham & Sons Pvt. Ltd. ...Applicant (Defendant No.4)
IN THE MATTER OF:
All India Medical Corporation & Another ....Plaintiffs
Versus
MCGM & Others .... Defendants
CORAM: H.H.JUDGE & ADDL.
SESSIONS JUDGE,
SHRI. K. P. KSHIRSAGAR,
(C.R. No.05).
DATE : 15th DECEMBER, 2021.
Appearance:
-
Ms. Vidhi Jain; Ld Advocate for plaintiff.
Shri. Vaibhav; Ld Advocate for defendant No.4.
ORAL ORDER
1) Defendant No.4 has taken out present notice of motion for
framing additional issues as per schedule.
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2 NM No.1711-2020 in SU No.1212-2010
2) Perused the notice of motion, affidavit in support of NM, reply
affidavit of plaintiff and record. Heard Ld Advocate for defendant No.4 and Ld
Advocate for plaintiff.
3) Ld Advocate for defendant No.4 vehemently argued that plaintiff
has come with specific case that he had taken the suit premises/suit godown
on rent from the defendant No.4 who is the original tenant of defendant No.1.
The defendant No.4 denied the above facts and came with the case that
defendant No.4 is the tenant of suit premises. Therefore, proposed additional
issue No.1 in the schedule is necessary. Moreover, defendant No.4 has
specifically averred that suit is barred by law of limitation. Therefore, it is
necessary to frame additional issue of limitation. Moreover, the court has no
jurisdiction to grant relief prayed in the prayer clause (a-1), (a-2) and (b) and
this court has no pecuniary jurisdiction to try and entertain the suit. Therefore,
it is necessary to frame the additional issues as per schedule. Therefore, notice
of motion be made absolute.
4) On the other hand Ld Advocate for plaintiff argued that
preliminary issue of jurisdiction of this court was already framed and decided
in affirmative. Therefore, issue of jurisdiction cannot be framed and
adjudicated again. The other additional issues as per the schedule annexed to
the notice of motion are not necessary for determining the matter in
controversy between the parties. Moreover, there is delay in taking out the
present notice of motion. The present notice of motion is filed with intent to
protract the matter. Therefore, Ld Advocate for plaintiff submitted that notice
of motion be dismissed.
5) As per Order 14 Rule 5 of the Code of Civil Procedure court may
at any time frame additional issues as may be necessary for determining the
matters in controversy between the parties. The perusal of the plaint reveals
that plaintiff has come with the specific case that defendant No.4 is the
original tenant of defendant No.1 in respect of the suit premises and plaintiff
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3 NM No.1711-2020 in SU No.1212-2010
had taken suit premises on rent from defendant No.4. The plaintiff prayed for
the relief that the tenancy of the suit premises be transferred in the name of
plaintiff No.1 and plaintiff is claiming the benefits of redevelopment of suit
premises. The perusal of the written statement of defendant No.4 reveals that
defendant No.4 denied the above averments of the plaintiff. Perusal of the
issues at Ex.12 reveals that additional issue No.1 as per schedule of notice of
motion is not framed. Moreover, from the perusal of written statement of
defendant No.4 it appears that defendant No.4 came with the defence that the
suit is barred by law of limitation. However, the issue pertaining the bar of
limitation is also not framed vide Ex.12. The proposed issue No.2 as per the
schedule is the question of law and considering the nature of the reliefs prayed
by the plaintiff it appears necessary. From the perusal of the order below Ex.1
dtd. 6/2/2012 it appears that the preliminary issue was framed concerning
jurisdiction of the court about the subject matter i.e. tenancy in view of
provisions of Maharashtra Rent Control Act and the court had hold that this
court has jurisdiction to entertain and try the suit. This objection to the
jurisdiction in the preliminary issue framed and decided as per order dtd.
6/2/2012 was not pertaining to the pecuniary jurisdiction of the court to try
and entertain the present suit. It is the contention of the defendant No.4 that
value of the subject matter/suit premises is above Rs.1 Crore and therefore
court has no pecuniary jurisdiction to try the present suit.
6) From the pleading of the parties the proposed additional issues as
per schedule annexed to the notice of motion appears necessary for
determining the matter in controversy between the parties. As the preliminary
issue decided by the court was not concerning to the pecuniary jurisdiction of
the court and jurisdiction of the court to grant the reliefs prayed in the prayer
clause (a-1), (a-2) and (b) there appear no substance in the objection of the
plaintiff that as the preliminary issue of jurisdiction is already decided the
proposed additional issue No.2 and 4 in the schedule cannot be framed.
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7) Considering the pleadings of the plaintiff and defendant No.4 and
the matter on record the court came to the conclusion that the additional
issues as per schedule annexed to the present notice of motion are necessary
for determining the matter in controversy between the parties. Therefore, it
will be appropriate to frame the additional issues as per schedule of the notice
of motion. As such present notice of motion deserves to be made absolute.
Hence, following order:-
ORDER
1) Notice of Motion No. 1711/2020 is made absolute.
2) Additional issues as per schedule to the Notice of Motion No.
1711/2020 be framed.
3) Notice of Motion No. 1711/2020 is disposed off accordingly.
Date: 15/12/2021. (K.P. Kshirsagar)
Judge
City Civil Court
Gr. Bombay
Dictated & typed on : 15/12/2021.
Checked on : 18/12/2021.
Signed by HHJ on : 18/12/2021.
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
18/12/2021 Mrs. S.A. Shekade.
Name of the Judge (With Court room
no.)
SHRI K.P. Kshirsagar (Court Room
No.05)
Date of Pronouncement of
JUDGMENT/ORDER
15/12/2021
JUDGMENT/ORDER signed by P.O.
on
18/12/2021
JUDGMENT/ORDER uploaded on 18/12/2021
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