Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 SC341.17
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
Notice of Motion No.2143 of 2018
In
S.C. Suit No.341 of 2017
Smt.Nirmala B. Hande & anr. ..Plaintiffs
V/s.
Sandeep R. Vinerkar ..Defendant
Coram : H.H.THE PRINCIPAL JUDGE
Mrs.P.V. GANEDIWALA
Dated : 5th July, 2018
(C.R.No.19)
Advocate Mr.Anil More for plaintiffs.
Advocate Mr.Akshay Kapadia for defendant.
O R A L O R D E R
The present Notice of Motion is taken out by the defendant
for rejection of plaint under Order 7 Rule 11(d) of Code of Civil
Procedure.
2 I have heard Mr.More, ld.counsel for the plaintiffs and
Mr.Kapadia, ld. counsel for the defendant.
3 The present suit is for Declaration and Injunction in respect
of the suit premises at Suryoday CHS, A/303, 3rd floor, Group no.2,
Tagor Nagar, Vikhroli (E), Mumbai83.
4 It is the case of the plaintiffs that they were occupying the
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suit premises owned by the defendant on basis of Leave and License
Agreement for 11 months period which was extended from time to time
during the period from 2010 till 2015. In the meantime, there was an
oral agreement between the parties and the plaintiffs agreed to
purchase the suit premises for total consideration of Rs.42 lacs and paid
Rs.16 lacs by way of cheque and in cash. The plaintiffs further state that
in September,2015, the defendant threatened the plaintiffs to vacate the
suit premises. The plaintiffs issued legal notice to the defendant on 5th
October,2015. The same was not replied by the defendant. The
plaintiffs filed the present suit for Declaration and Permanent
Injunction.
5 The defendant in this Motion for rejection of plaint,
submits that a similar suit was filed by the plaintiff no.2 before this
court vide S.C. Suit No.2432/2015 for the same relief on the basis of
same cause of action. The said suit was withdrawn on 20th June,2016
without liberty for filing the fresh suit.
6 As per Order 7 Rule 11(d) of Code of Civil Procedure, the
plaint shall be rejected where the suit appears from the statement in the
plaint to be barred by any law. In the present case, the plaintiffs in para
no.20(a) of the plaint submitted that the plaintiffs had once filed the
suit No.2432/2015 against the defendant for the suit premises, but the
said suit was withdrawn as the defendant was ready to compromise the
matter.
7 As per Order 23, Rule 1(4) where the plaintiff withdraws
from a suit or part of a claim without the permission of the court, he
shall be precluded from instituting any fresh suit in respect of such
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subject matter or such part of the claim. In the present case, the
averments in the plaint itself show that the earlier suit was filed for the
same subject matter and the same was withdrawn. The plaintiffs could
not show that the liberty of the court was obtained to file a suit afresh
for the same subject matter. In view of the bar of Order 23, Rule 1(4),
a fresh suit is not maintainable as the same is filed not only for the same
subject matter but also for the same cause of action without obtaining
the liberty of the court and as such I pass the following order:
O R D E R
Notice of Motion no.2143/18 is made absolute in terms of
prayers clause (a) and (b).
05/07/2018 (P.V. GANEDIWALA)
Principal Judge,
Gr.Bombay.
Dictated on : 05/07/2018
Transcribed on : 06/07/2018
Signed by HHJ on :
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE
ORIGINAL SIGNED JUDGMENT/ORDER
Name of Stenographers: Mrs.Aruna S. Jayade
Upload date and time: 07/07/2018 (At 6.03 p.m.)
Name of the Judge H.H.THE PRINCIPAL JUDGE
Mrs.P.V.GANEDIWALA(C.R.No.19)
Date of Pronouncement of Order 05th July,2018
Order signed by P.O. on 07th June,2018
Order uploaded on 07th July,2018
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