Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM 3233/19(Suit 3427/13)
MHCC010088302019
IN THE BOMBAY CITY CIVIL COURT FOR GREATER MUMBAI
NOTICE OF MOTION NO.3233/2019
IN
S. C. SUIT NO. 3427/2013
1. Smt. Chhya Prakash Powar
2. Mrs. Suchitra Surendranath Sadwilkar
3. Mrs. Pradnya Pramod Pathare
4. Shekhar Manohar Shetye .. Plaintiffs.
V/s.
1. Mr. Nitin M. Shetye
2. Shiv Shahi (SHivaji Nagar) CHS Ltd.
3. M/s. HBS Realtors
4. M/s. Wondervalue Realty Developers
Pvt. Ltd. .. Defendants
Appearances :
Adv. Indrajeet Suryawanshi a/w Adv. Shubhankar Pandey for plaintiff.
Adv. Kishor Hase for defendant no.1 present.
Coram: His Honour Judge
Shri. A.H.Laddhad
(C.R. No.03).
Date : 13.4.2022.
ORDER
1. Defendant no.1 filed instant notice of motion seeking
rejection of plaint under Order 7 Rule 11(a) to (d) of CPC.
2. It is the contention of defendant no.1 that, the plaintiff
filed false, frivolous, vexatious suit with an ulterior motive to harass the
defendants. The suit of the plaintiff is timebarred. It is contended that,
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a family arrangement was already executed on 19.7.1985, thereby
plaintiff no.4 had received consideration of Rs.45,000/ against
relinquishment of his share in the suit premises. Inspite of that, the
plaintiff filed present suit after laps of so many years.
3. It is further contended that, the plaintiff could have filed
the suit within three years from the date when the mother made an
application to MHADA for transfer of the flat in his name. In fact, the
plaintiff gave consent for the same. Hence, present suit is not
maintainable.
4. It is further contended that, the plaintiff did not value the
suit and not paid requisite court fees. Hence, the suit needs to be
dismissed.
5. It is further contended that, the plaintiff no.4 before filing
the present suit filed Testamentary Petition no.1141/2013 on 20.5.2013
before the Hon’ble High Court. The plaintiffs claim parallel relief in two
different courts, that too without disclosing in the present suit about
filing of the testamentary petition. Therefore, for the aforesaid reason,
the defendant no.1 prayed for rejection of the plaint.
6. Motion is opposed by the plaintiffs by filing affidavit of
plaintiff no.3 on the ground that, without execution of registered
relinquishment deed the plaintiff cannot relinquish their right in the suit
property. It is further contended that, NOC obtained by the defendant
no.1 during redevelopment process is by playing fraud for which they
have filed police complaint. They have filed suit within limitation. It is
submitted by them that, the plaintiffs are also legal heirs of the original
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tenant. Therefore, their suit is well within limitation. Hence, they have
prayed for rejection of the Motion.
7. I have heard both the sides. The plaintiffs also tendered
written submissions. The plaintiffs filed instant suit seeking declaration
of coownership with respect to the suit premises. The defendant no.1
by way of present Motion seeking rejection of the plaint on the ground
that by virtue of family arrangement dated 19.7.1985, plaintiff no.4 had
received consideration of Rs.45,000/ and relinquished his all right, title
and interest. Admittedly, there is no registered relinquished deed on
record. The issue whether the plaintiff no.4 by virtue of family
arrangement relinquished his share or not will be the subject matter of
trial. The alleged family arrangement cannot be considered as a starting
point of limitation for cause of action of present suit.
8. The defendant no.1 further claimed that, on 23.7.2004 his
mother made an application to transfer the suit flat in his name and
since then, within three years the plaintiff ought to have filed the
present suit. It is further contended that the plaintiffs gave their no
objection to MHADA for transferring the suit flat. The plaintiffs
contended that, MHADA is not a competent authority before whom they
can relinquish their right. Thus, the aforesaid issue is also a triable
issue. The question of limitation of filing the suit is the question of fact
and law. It cannot be decided at this stage, although the plaint can be
rejected on the issue of limitation.
9. Ld. Advocate for the defendant relied on the judgment of
the Hon’ble apex Court in the case of Raghwendra Sharan SIngh V/s.
Ram Prasanna Singh (Dead) by LRs (Civil Appeal No. 2960 of 2019)
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decided on 13.3.2019. In the aforesaid suit, the plaintiff without
challenging the registered gift deed which was executed on 6.3.1981 by
which possession was transferred, plaintiff claimed declaration that gift
deed executed was sham transaction and no title is passed by virtue of
the gift deed. The Hon’ble Apex Court specifically observed that, the
plaintiff purposefully refrained from claiming declaration to set aside
the gift deed and thereby trying to bring the suit within limitation
though in view of Article 59 of Limitation Act the suit is clearly barred
by limitation. Therefore, the Hon’ble Apex Court observed that, when
the suit is barred by limitation the plaint cannot be allowed to
circumvent the provisions of Limitation Act by means of clever drafting
so as to avoid to mention of those circumstances, by which the suit is
barred by the law of limitation.
10. I have carefully gone through the above judgment. The
facts of the present case and that of the aforesaid judgment are
distinguishable. In the aforesaid case, the plaintiff purposefully did not
challenge the registered gift deed so as to circumvent limitation of suit.
However, in the present case, the law of limitation is subject matter of
the trial. Hence, with due respect, the aforesaid case law is not
applicable to the present case and suit cannot be rejected on the issue of
limitation.
11. The defendant no.1 alleged that, the plaintiff failed to
value the suit properly and hence, he is claiming to reject the plaint. It
is to be noted that, the plaint cannot be rejected under Order 7 Rule 11
of CPC for wrong valuation of the suit property. In fact, if the plaintiff
after order being passed to pay court fees fails to pay the court fees then
the plaint can be rejected under order 7 Rule 11 of CPC. The ground of
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rejection of plaint raised by the defendant is misconceived. Hence, I do
not find any substance in the present Motion and same needs to be
dismissed with following order :
ORDER
1. Notice of Motion No. 3233 of 2019 is dismissed with costs.
2. Notice of Motion is disposed of accordingly.
(A.H.Laddhad)
Judge,
Dated : 13.4.2022 City Civil and Sessions Court,
Dictated on : 13.4.2022 Greater Bombay (CR 03)
Typed on : 13.4.2022
Draft given on : 13.4.2022
Signed on : 18.4.2022
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED JUDGMENT/ORDER.”
Date 18.4.2022 at 3.00 pm (Nitin V. Ubale)
UPLOAD DATE AND TIME Selection Gr. Stenographer(Gr.1)
Name of the Judge (With Court room no.) Shri A.H.LADDHAD (C.R. No.3)
Date of Pronouncement of JUDGMENT/ ORDER 13.4.2022
JUDGMENT/ORDER signed by P.O. on 18.4.2022
JUDGMENT/ORDER uploaded on 18.4.2022
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