Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 N/M NO. 3264/2019
MHCC010088942019
IN THE BOMBAY CITY CIVIL COURT AT MUMBAI.
NOTICE OF MOTION NO. 3264 OF 2019
IN
S.C. SUIT No. 8690 OF 1992
(H.C. SUIT No.1293 OF 1992)
Lalit Ishwar Khilnani ...Plaintiff
Vs.
1. Ziprabai Alias Jipribai widow
of Dhakat Lakhma Wagh Warli & Ors. … Defendants
Appearance
Learned Advocate Mr. Dilip Bagwe for the plaintiff.
Learned Advocates Mr.Ghadigaonkar & Kamlesh Mali for defendant
Nos.2A to 2D and 3.
CORAM : HHJ Rajesh A. Sasne
(C.R.NO.62)
Date : 15th APRIL, 2023
O R D E R
1. By this notice of motion defendant Nos.2A to 2D and 3
made following prayers:
a) that by an Order of this Hon'ble Court the additional issue 9a framed by this Hon'ble
Court on 15.04.2019, which reads as “9(a) Whether defendant Nos.2A to 2D and 3
prove that they belong to Warli Caste which is notified as Schedule Tribes and defendant
No.1 was belonging to said community and transaction in question is bad in law in view
of Section 36A of M.L.R. Code” may kindly be determined as a Preliminary issue and
the present suit be further dealt in accordance with the decision on the said preliminary
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issue;
b) Such further and other directions be given and reliefs granted as to this Hon'ble Court
may appear just and proper.
2. It is the contention of the aforesaid defendants that in the
present suit, the plaintiff is seeking specific performance and
declaration against the defendants. This Court on 15.04.2019 framed
additional issue No.9(a). Said issue is pertaining to the fact, whether
defendant Nos.2A to 2D and 3 are belonging to Warli Caste and thereby
transaction in question is badinlaw in view of Section 36A of
Maharashtra Land Revenue Code (MLRC). According to these
defendants in view of Section 36A of MLRC, there is a clear restriction
on any transfer of such lands held by Schedule Tribes. Therefore,
according to these defendants being this issue is of law it can be
decided as preliminary issue under Order 14 Rule 2 (2) of C.P.C.
Accordingly, these defendants have prayed to decide that issue as
preliminary issue.
3. The plaintiff resisted said contentions of these defendants
by affidavitinreply. It is his contention that evidence of the plaintiff
has already begun, now, case is posted for crossexamination of the
plaintiff. Suit is of the year 1992. The present motion is filed at very
belated stage. According to plaintiff, issue No.9a is mixed question of
fact and law and does not rise to decide it as preliminary issue under
Order 14 Rule 2 (2) of C.P.C. Moreover, it is the discretion of the Court
to try any issue as preliminary issue. The defendants have not produced
any document to substantiate their alleged claim that they or the
transferor belonged to notified Schedule Tribe. With these contentions,
the plaintiff has prayed to dismiss the motion.
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4. The defendants by rejoinder has relied on certain
documents in support of their contentions regarding the issue of Caste
and prayed to allow the motion.
5. Heard learned Advocates for defendant Nos. 2A to 2D, 3
and the plaintiff.
6. Learned Advocate Mr. Bagwe for the plaintiff relied on
following Judgments,
1. Usha Sales Limited V/s. Malcolm Gomes, AIR (Bom)1984060.
2. Sorojini Rath V/s. Bhaskar Rath, Laws (ORI)197695.
3. Shri Vasant Mahadev Tikekar & Ors., V/s. State of Maharashtra &
Ors., Writ Petition No.2308 of 2009 (Hon'ble Bombay High Court)
7. In Usha Sales Limited case supra it is held that there is,
however, a small exception carved out to the above provision. The
Court may try an issue relating to the jurisdiction of the Court or to the
legal bar to the suit as preliminary issue but this is more in the nature of
a discretion rather than a duty and the Court is not bound to try any
issue despite the provision contained in subrule (2) of Rule 2 of Order
14 of the Code.
8. In Sarojini Rath's case supra it was held that the view of
the learned subordinate Judge refusing to try issue regarding the Res
judicata as a preliminary issue is correct. In Vasant Tikekar's case
supra it is held that, a person derives his status by virtue of his birth and
not upon marriage. It is further held that if the transferor is not a tribal,
her/his heirs, who claim through the transferor's husband, even if they
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are tribal, cannot make a legitimate claim for restoration of the lands
transferred by their nontribal predecessor in title.
9. The learned advocate for the present contesting defendants
relied upon the provision of Section 36A of MLRC.
10. The judgment in Vasant Tikekar's case supra is in respect
of merit of issue No.9A. In the present motion, it is not expected to
comment on merit of issue therefore, this judgment is not helpful to the
plaintiff. Short question involved in this motion is, whether issue No.9A
framed in respect of bar of Section 36A of MLRC shall be taken as
preliminary issue under Order 14 Rule 2 (2) of the CPC ? It is the
contention of these contesting defendants that, their predecessor in title
as well as the present defendants belong to Warli Caste which is
Scheduled Tribe therefore, there is restriction on any transfer of such
land. These defendants have requested to try this issue No.9A as
preliminary issue. I have considered whole fact in the suit, pleadings
and the written statement. As held in Usha Sales Limited case supra, it
is discretion of the Court to try any issue as a preliminary issue under
Order 14 Rule 2 (2) of the CPC. As contended by the plaintiff the
evidence is already started. Suit is of the year 1998, trial is already
proceeded. Therefore, I do not want that it shall be revert back to the
stage of evidence on preliminary issue. The issue No.9A is the issue of
facts and law. It is not purely an issue of law. For proving the ground of
applicability of Section 36A of MLRC, certain facts are required to be
brought on record. For that purpose there will be oral and documentary
evidence, it will not save the time of the Court. The evidence in respect
of all issues is already started. Considering the facts on record, I am of
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the view that suit must be tried as a whole and not in part. As the issue
9A requires evidence of facts and it is not purely an issue of law,
therefore, I am of the view that no discretion shall be used to try and
decide said issue as a preliminary issue. In the result, motion is
required to be dismissed. Hence, I pass following order:
ORDER
1. Notice of motion No.3264 of 2019 is dismissed.
2. Costs shall follow the event.
Date : 15.04.2023
(Rajesh A. Sasne)
Judge
City Civil Court,
Mumbai
Dictated on : 15/04/2023.
Transcribed on : 17/04/2023.
Checked and Signed on: 21/04/2023.
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
21.04.2023 at 12.45 p.m. Typed by Mr. S.S. Bathe
Finalized by Mr. M. M. Patange
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge(with CR
No.)
HHJ SHRI. R.A. SASNE
(C.R.No.62)
Date of pronouncement of Order 15/04/2023
Order signed by P.O. on 21/04/2023
Order uploaded on 21/04/2023
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